I 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


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<i/  (^fT^^^'^^-. 


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#?<»1»?r 


♦  ^ 


PRACTICAL    FORMS 


ACTIOIVS,  PERSOlVAIi  AIVD  RElAIi, 


AJTD  m 


CHANCERY: 


WITH  NOTES,  &C. 


BY  P.  B.  WILCOX, 

Attorney  at  Law. 


COLUMBUS: 
PUBLISHED  BY  ISAAC  N.    WHITING. 

1833. 


ES5 


Entered  according  to  act  of  Congress,  in  the  year  eighteen  hundred  and  thirty-three, 
by  ISAAC  N.  WHITIJNG, 

in  the  office  of  the  Clerk  of  the  District  Court  of  the  District  of  Ohio. 


PREFACE 


The  design  of  this  work  is  to  furnish,  in  a  convenient  form,  a 
collection  of  precedents,  in  civil  cases,  with  a  general  out-line  of 
Practice,  in  the  Supreme  Court  and  Court  of  Common  Pleas,  of 
the  State  of  Ohio.  The  technicalities  of  special  pleading,  as  well 
as  all  other  matters  of  abstract  speculation,  have  been  carefully 
avoided;  and  the  sole  object  of  the  compiler  has  been,  to  collect 
and  arrange  a  set  of  common,  practical  forms,  accompanied  with 
comments  and  references,  such  as  may  be  useful  both  to  the 
Lawyer,  in  the  transaction  of  his  ordinary  business,  either  in  va- 
cation, or  in  the  hurry  of  Term,  or  in  his  running  practice  upon 
the  circuit;  and  to  the  Clerk  in  the  various  duties  of  his  office,  ex- 
cept in  matters  of  a  criminal  nature.  The  student  also,  it  is  hoped, 
may  reap  some  benefit  from  the  perusal  of  this  volume;  for  although 
it  falls  far  short  of  being  one  of  Lord  Coke's  "Windows  of  the 
Law,"  it  still  may  reflect  a  few  rays  of  light  upon  the  obscurity, 
in  which,  to  the  mind  of  the  student,  the  practical  part  of  the 
science  of  law,  in  the  State  of  Ohio,  is  involved. 

The  reader  is  not  to  conclude,  that  all  the  pleadings,  writs, 
entries,  &c.  which  are  here  inserted,  are  exact  in  form,  or  sus- 
tained in  principle.  With  the  exception  of  such  forms  as  are  pre- 
scribed by  statute,  the  selection  has  been  made  from  a  great  va- 
riety of  authors,  both  ancient  and  modern;  and  in  regard  to  some 
of  the  precedents  the  compiler  feels  himself  under  no  other  res- 
ponsibility than  for  the  accuracy  of  transcription.  To  the  prece- 
dents oi pleadings,  the  authorities  are  generally  annexed,  and  tlie 
reader  must  judge  of  their  correctness  for  himself.  Most  of  tlie 
original  entries  in  the  Supreme  Court  of  the  United  States,  and 
in  the  Circuit  Court  of  the  United  States  for  the  District  of  Oiiio, 
and  all  the  entries  of  the  Court  in  Bank,  since  its  organization  have 
been  examined;  and  those  have  been  selected  which  were  believed 
to  be  of  the  most  importance,  and  most  likely  to  be  generally  use- 
ful. 


S480S7^ 


COURT  OF  COMMON  PLEAS. 


II.  Court  of  Common  Pleas. 

The  state  is  divided,  by  law,  into  nine  Circuits;  in  each  of  which 
there  is  a  presiding  Judge,  who  is  assisted  by  not  more  than  three, 
nor  less  than  two  Associate  Judges,  in  q^ch  of  the  several  Coun- 
ties composing  such  Circuit.     The  Associate  Judges  are  appointed 
for  each  County;  and  the  President  and  Associate  Judges,  any 
three  of  whom  constitute  a  quorum,  compose  the  Court  of  Com- 
mon Pleas.     This  Court  has  original  jurisdiction  in  all  civil  cases, 
both  in  law  and  equity,  where  the  matter  in  dispute  exceeds  the 
jurisdiction   of  Justices  of  the  Peace;  and  appellate  jurisdiction 
from  the  decisions  of  Justices  of  the  Peace.     The  Court  of  Com- 
mon Pleas,  also,  in  most  cases,  has  concurrent  jurisdiction  with 
Justices  of  the  Peace;  but  unless  the  plaintiff  obtain  judgment  for 
one  hundred  dollars  or  more,  exclusive  of  costs,  he  can  in  general, 
recover  no  cost?.     An  appeal  lies  to  the  Supreme  Court  from  all 
judgments  of  the  Court  of  Common  Pleas,  where  the  action  was 
originally  commenced  in  the  Court  of  Common  Pleas.     Tliis  Court 
also  exercises  exclusive  jurisdiction  in  all  probate  and   testamen- 
tary matters,  granting  administration  and  the  appointment  of  guar- 
dians; and  is  vested  with  the  same  power  as  the  Supreme  Court, 
to  issue  remedial  and  other  process,  except  only  writs  of  eri^or 
and  mandamus.     There  are  generally  three  terms  of  the  Court  in 
each  County  annually.     These  terms  are  not  permanently  estab- 
lished, as  in  England,  but  are  fixed  annually  by  the  Legislature. 
Special  sessions  may  be  held  for  the  purpose  of  appointing  ad- 
ministrators and  guardians.     The  business  of  this  Court  is  multi- 
farious beyond  description. 


SUPREME  COURT. 


III.  SuPKEME  Court. 


This  Court  consists  of  four  Judges,  any  two  of  whom  constitute 
a  quorum.  It  has  concurrent  jurisdiction  with  the  Court  of  Com* 
mon  Pleas,  in  all  civil  cases,  both  at  law  and  in  equity,  where  the 
matter  ir.  dispute  exceeds  one  thousand  dollars:  and  appellate  juris- 
diction from  the  Court  of  Common  pleas,  in  all  cases,  in  which 
that  Court  has  original  jurisdiction.  This  Court  may  issue  writs 
oj  habeas  corpus  cum  causa,  certiorari,  mandamus,  prohibition, 
procedendo,  error,  supersedeas,  ne  exeat,  and  all  other  writs  not 
specially  provided  for  by  statute,  which  may  be  necessary  to  en- 
force, the  due  administration  of  right  and  justice  through  the  state, 
and  for  the  exercise  of  its  jurisdiction,  agreeably  to  the  usages 
and  principles  of  law.  Writs  of  error,  supersedeas,  certiorari, 
and  habeas  corpus,  ior  the  purpose  of  an  inquriy  into  the  cause  of 
commitment,  may  also  be  granted,  in  vacation,  on  good  cause 
shown,  by  any  Judge  of  this  Court.  The  Supreme  Court  is  requi- 
red by  the  Constitution  to  be  held  once  a  year  in  eacli  County;  and 
the  terms  are  regulated^  annually  by   statute. 


COURT    IN  BANK. 


IV.  Court  in  Bank. 

This  Court  is  composed  of  the  four  Judges  of  the  Supreme  Court, 
any  three  of  whom  constitute  a  quorum,  and  is  held  annually,  at 
the  seat  of  government,  for  the  final  adjudication  of  all  such  ques- 
tions of  law  as  may  be  reserved  by  the  Supreme  Court  on  the  Cir- 
cuit. The  Court  in  Bank  does  not  exercise  original  jurisdiction,  but 
where  any  important  question  arises  on  the  Circuit,  in  any  proceed- 
ing at  law  or  in  equity,  such  question  may  be  reserved,  by  the 
Judges  holding  the  Court  upon  the  Circuit,  for  final  decision  in  Bank. 
If  the  Judges  upon  the  Circuit  are  divided  in  opinion  upon  any 
question,  such  question,  on  motion  of  either  party,  may  also  be 
reserved  for  decision  in  Bank.  The  Court  in  Bank  is  not  regarded 
as  a  new  Court,  but  as  a  kind  of  special  session  of  the  Supreme 
Court,  and  its  decisions  are  accordingly  considered  as  made  in  the 
respective  Counties  from  which  the  cases  may  have  been  reserved. 
•It  was  first  organized  in  1823,  and  its  decisions  are  annually 
reported. 


ACTIONS. 


Actions. 

The  Actions  resorted  to  in  the  State  of  Ohio,  for  the  redress  of 
civil  injuries,  are  Assumpsit,  Debt,  Covenant,  Detinue,  Case,  Trover^ 
Replevin,  Trespass  viet  armis.  Scire  facias,  and  Ejectment.  These 
remedies  are  coeval  with  the  first  attempts  to  administer  justice  in 
our  State;  and  by  a  kind  of  common  consent,  they  seem  to  have 
been  tacitly  adopted  from  the  common  law  of  England,  as  being 
the  best  known  methods  of  appealing  to  Public  Authority  for  the 
redress  of  private  wrongs.  By  an  Act  of  the  Territorial  Legisla- 
ture, passed  in  1795,  and  by  a  like  Act  of  the  State  Legislature, 
passed  in  1805,  the  common  law  of  England,  and  all  statutes  of  the 
British  Parliament,  of  a  general  nature,  prior  to  the  fourth  year  of 
James  L  were  declared  to  be  the  law  of  this  State.  These  statutes 
may  be  considered  as  an  express  recognition  of  the  common  law 
Actions;  but  it  is  well  known  that  the  same  Actions  were  univer- 
sally resorted  to,  as  well  before  these  statutes  were   enacted,  as 
after  their  repeal  in    180G.     However  they  may  have  been  intro- 
duced, they  have  now  become,  by  long  usage  and  indirect  legisla- 
tion, a  part  of  the  established  laws  of  the  land.     Many  of  them 
have  been  modified  by  statute,  and  some  peculiar  statutory  reme- 
dies have  been  introduced;   but,  in  general,  the  great  leading  prin- 
ciples of  the  common  law  of  England,  in  relation  to  the  redress  of 
private  injuries,  by  Actions  at  law,  will  be  found  to  prevail  in  the 
State  of  Ohio. 


MESNE  rROCESS. 


Mesjte  PaocEss. 


Mesne  process,  in  Ohio,  is  in  general,  either  a  sum?nons,  or  a 
capias  ad  respondendum;  and  is  sued  out  of  that  Court  to  which  it 
is  made  returnable,  and  not  out  of  the  Court  of  Chancery,  as  in 
England.  No  original  writ,  as  known  in  the  English  practice,  is 
sued  out  or  supposed  to  be  sued  out,  as  a  foundation  for  a  summons 
or  a  capias,  but  the  summons  and  capias,  are  themselves  original 
"Writs.  The  summons  is  a  mandatory  letter  from  "TAe  State  of 
Ohio,"  directed  to  the  Sheriff  of  the  proper  County,  and  command- 
ing him  to  summon  the  defendant  to  appear  in  Court  at  a  day  cer- 
tain, and  answer  the  accusation  against  him.  The  summons  is 
served  either  personally  upon  the  defendant,  or  by  leaving  a  copy 
at  his  usual  place  of  residence.  If  the  defendant  neglects  or 
refuses  to  appear  and  defend  the  suit,  the  plantiff  may  proceed 
and  take  judgment  by  default.  A  capias  ad  respondendum  issues 
in  like  manner,  commanding  the  Sheriff  to  take  the  body  of  the 
defendant,  if  he  may  be  found  in  his  bailiwick,  and  him  safely  keep, 
so  that  he  may  have  him  in  Court,  on  the  day  of  the  return,  to 
answer  the  complaint  against  him.  Upon  this  writ  the  SherifTmay 
take  bail  and  discharge  the  defendant  from  close  custody;  but  if 
sufficient  bail  be  not  offered,  the  defendant  must  be  imprisoned. 
Upon  the  return  of  a  capias,  that  the  defendant  is  not  found,  or  of 
a  summons  that  he  is  not  served,  the  plaintifTmay,  sue  out  an  alias 
SLiidpluries,  until  the  defendant  is  arrested  or  served;  or  a  testatum 
may  issue  when  the  defendant  has  removed  into  another  County 
after  the  commencement  of  the  suit. 


ASSUMPSIT. 


Assumpsit. 


The  Action  of  Assumpsit  is,  in  general,  commenced  by  suing 
out  of  the  proper  Court  (a)  a  writ  of  summons  or  capias  ad  respon- 
dendum. 


.  Summons. 

The  summons  is  issued  as  a  matter  of  course,  upon  filing  with 
the  Clerk  of  the  proper  Court,  a  Praecipe. 


(a)  The  Supreme  Court  has  concurrent  jurisdiction  with  the  Court  of 
Common  Pleas,  in  all  cases,  where  the  matter  in  dispute  exceeds  one  thou- 
sand dollars,  and  o/>j?eZ/a/e  jurisdiction  from  the  Court  of  Comjnon  Pleas,  in 
all  civil  cases;  in  which  the  Court  of  Common  Pleas  has  original  jurisdiction; 
and  the  Court  of  common  Pleas  has  orignal  Jurisdicton  in  all  civil  cases 
where  ihe  matter  in  dispute  exceeds  tlie  Jurisdiction  of  Justices  of  the 
Peace.  Stat.  Vol.  2%.  p.  50.  57.  \.  3.  4.  Suits  arc  rarely  commenced  in 
the  Supreme  Court.  That  Court  holds  but  one  session  in  each  County  annu- 
ally; and  a  cause  will,  in  general,  be  brought  to  a  final  decision  sooner  in 
the  Supreme  Court,  by  commencing  in  the  Common  Pleos,  and  appealing 
to  the  Supreme  Court,  than  by  commencing  orignally  in  the  Supremo 
Court. — See  Appeal. 


ASSUMPSIT. 


Precipe  for  Summons  in  Assumpsit. 

A.  B.  ^ 

V.      >  hi  Assumpsit.     Damages  — —  Dollars. 
CD.) 

Issue  a  Summons,  returnable  forthwith, 
\if  in  term  time,']  or,  at  next  term  [if  in  vacatio7i]  Endorse,  "Suit 

brot,  on  note  of  hand  given  by  deft,  to  pltff.  for dollars,  dated, 

^c,     Also  for  goods  sold  and  delivered,  ^c."  (a) 

To  the  Clerk  of Com.  Pleas,   or  Sup.  Court. 

Dated,  &c.  T.  S.  Attij.  for  Pltff. 

Writ  or  Summons. 

[Seal.]     The  State  of  Ohio County,  ss. 

To  the  Sheriff  of  said  county,  Greeting  : 

We  command  you  to  summon  C.  D.  to  appear  before 
our  Supreme  Court,  or,  Court  of  Common  Pleas,  of  the  County 
aforesaid,  at  the  Court  House  in  said  County,  forthwith  \ifin  term 
time]  or,  on  the  first  day  of  their  next  Term,  \if  in  vacation]  to 

answer  unto  A.  B.  in  fx'^le^oi  Assumpsit.  Damages dollars; 

and  have  you  then  there  this  writ. 

Witness,   T.  T.   Chief  Judge  of  our  Supreme    Court,  or. 
President  Judge  of  our  Court  of  Common  Pleas,  aforesaid,  this 

day  of A.  D. 

Attest.  .  T.  C.  Clerk. 

Upon  the  back  of  this  writ,  the  Clerk  endorses  the.  cause  of  action 
and  the  amount  appearing  to  he  due,  as  the  same  are  stated  in  the 


(a)  The  substance  of  the  cause  of  action  must  be  briefly  set  out  in  the 
Praecipe,  and  endorsed  on  the  writ,  otherwise  the  writ  may  be  quashed  on 
motion  at  the  costs  of  the  Plaintilf. 


AvSSUMPSIT.  9 

Prascipe.  If  liie  {plaintiff  is  anon-resident  of  the  County,  the  writ 
must  also  be  endorsed  by  some  responsible  freeholder  of  the  County, 
as  sccm'ity  for  costs.  Stat.  vol.  29.  p.  58.  59.  §  3.  4.  The  Sher- 
iff is  not  bound  to  serve  the  writ  until  such  security  is  given ;  the 
statute  however,  in  this  respect,  is  considered  merely  directory, 
and  service  of  process  without  an  endorsement  for  the  costs  is  val- 
id. The  defendant  after  the  service  and  return  of  the  writ,  on  mo- 
tion to  the  Court,  either  at  the  appearance  or  any  subsequent  Term 
before  final  Judgment,  may  take  a  rule  upon  the  plaintiff  to  enter 
security  for  the  costs  within  such  time  as  the  Court  shall  judge  rea- 
sonable ;  and  if  this  rule  be  not  complied  with,  the  plaintiff  will  bo 
non-suited.     2.  Ohio  Rpj).  259.     Ohio  Conds.  353. 

A  copy  of  this  writ  must  be  personally  served  upon  the  defend- 
ant, by  the  Sheriff  or  other  proper  officer,  or  left  at  his  usual  place 
of  residence,  at  any  time  before  the  return  of  the  original.  Stat, 
vol.  29.  p.  117.  §.  1.  If  the  original  be  returned  "not  served," 
or  "not  summoned,"  the  plaintiff  may  sue  out  an  alias  summons, 
and  afterwards  plurics  summonses,  until  the  defendant  shall  be 
served. 


Alias  Summons. 

[Seal.]     The  State  of  Oliio County,  ss. 

To  the  Shcriir  t»f  said  County,  Cueeti?(o: 

We  command  you,  as  heretofore  wo  have  commanded  you,  to 
summon,  &c.   [Conclude  as  in  the  original  su?nmons,  ante.  8.] 

Pluries  Summons. 

[Seal.]     The  Stale  of  C)hio, Ccninty,  ss. 

To  tli(^  .Slicriir  of  s;iid  ( 'ounty,  CunirriNo: 

We  command  ynu.  as  r>ltcii  hcrctoiore  wc  havooommandedyou, 
to  summon,  &c.    [Conclxidc.  as  in  the  original  summons,  ante,  8,] 

B 


10  ASSUMPSIT. 

If  the  defendant  remove  into  another  County,  after  a  summons  is 
sued  out,  but  before  service,  the  plaintiff  may  sue  out  a  testatum 
summons,  directed  to  the  Sheriff  of  that  County,  into  which  he  may 
have  so  removed.     Stat.  vol.  29.  p.  118.  §.  5. 


Testatum  Summons. 

[Seal.]     The  State  of  Ohio,  Hamilton  county,  ss. 

To  the  Sheriff  of  Franklin  county.  Greeting: 

Whereas  we  lately  commanded  our  Sheriff  of  said  Hamilton 
County,  to  summon  C.  D.  to  appear  before  our  Cmirt  of  Common 
Pleas  of  said  Hamilton  County,  at  the  Court  House  in  Cincinnati, 
on  the day  of,  &c.  to  answer  unto  A.  B.  in  a  plea  of  Assump- 
sit, Damages Dollars;  and  our  said  Sheriff  of  iZam/ton  county, 

hath  returned  thereon,  that  the  saidC.  D.  was  not  summoned;  up- 
on wliich,  on  the  part  of  the  said  A.  B.  before  our  said  Court  of 
Common  Pleas  of  Hamilton  County,  it  is  sufficiently  testified,  that 
the  said  C.  D.  after  the  suing  out  of  the  said  writ  of  summons,  did 
remove  into  the  said  County  of  Franklin;  therefore  we  command 
you  to  smiimon  the  said  C.  D.  to  appear  before  our  said  Court  of 
Common  Pleas  of  said  Hamilton  County,  at  the  Court  House  in  Cin- 
cinnati on  the  first  day  of  their  next  term,  to  answer  unto  the  said 

A.  B.  in  the  same  plea  of  Assumpsit,  Damages Dollars ;  and 

have  you  then  there  tliis  writ. 


summons,  ante.  8.] 


Witness,  &c.  [^Conclude  as  in  the  original 


II.  Capias  ad  respondenduji. 

The  plaintiff  is  entitled  to  a  capias  in  all  actions  brought  on  any 
covenant,  bond,  sealed  bill,  promissory  note,  due  bill,  bill  of  ex- 
change, or  article  of  agreement  for  the  payment  of  any  sum  of 
money  certain,  and  in  all  actions  brought  on  other  contracts,  by 
which  the  sum  due  or  damages  sustained,  shall  appear  to  be  unccr- 


ASSUMPSIT.  11 

tain,  but  which  the  plaintiff,  or  iiis  agent,  shall  swear  by  affidavit, 
to  be  filed  in  the  cause,  are  not  less  than  one  hundred  dollars.  The 
plaintiff  is  also  entitled  to  a  capias  in  all  other  cases  where  the 
Court  in  term  time,  or  any  Judge  thereof  in  vacation,  shall  order 
special  bail  to  be  given,     titat.  vol.  29.  p.  59.  §.  6. 

The  plaintiff,  in  all  cases  where  he  is  entitled  to  a  capias,  mav 
in  the  first  instance,  sue  out  a  summons,  and  upon  its  return,  the 
Court  on  motion,  may  order  special  bail  to  be  given,  in  the  same 
manner,  as  if  the  capias  had  beea  the  first  process.  Stat.  vol.  29. 
p.  117.  §.  1. 

Praecipe  for  Capias. 

A.  B.  ^ 

V.      >  In  Assumpsit.     Damages Dollars. 

C.  D.  J  ^ 

Issue  a  capias  ad  respondendum 
returnable  forthwith,  \if  in  term  time,']  or,  at  the  next  term,  [if  in 
vacation,']  Endorse  "  Suit  brot   on  note  given  by   deft,  to  pltff. 

for  Dollars,   &c.     [See,  Prcecipc    for   summons,  ante.  8.] 

note  (a). 

Hold  to  bail  in  the  sum  of Dollars,  [double  the  amount  due 

or  sworn  to.] 

To  the  Clerk  of Com.   Pleas,  or.  Sup.   Court. 

Dated,  &c.  T.  S.  Attij.  for  Pltff. 

In  those  cases  where  the  crt/)/rtsSssues  upon  ajjidavit,  and  not,  as 
of  course,  the  affidavit  is  annexed  to  the  above  Praecipe,  and  is  filed 
therewitii;  thus: 

Affidavit  to  hold  to  Bail. 


The  above  named  A.  B.  makes  oath  and  says  that  the  above 
named  C.  D.  is  truly  and  justly  indebted  to  this  deponent  in  the 
sum  of dollars,  [not  less  tfutJi  100  hundred  dollars.]  upon  the 


IS  ASSUMPSIT. 

contract  set  forth  in  thi;  above  Prccci])e,  or,  for  dajnagis  mslulned 
hy  this  deponent  for  the  violation  of  the  contract  set  forth  in  the 
above  Praicipe. 

Sworn  to,  &c.  "  A.  13. 


The  oke  by  an    AGE^T. 

T.  W.  of,  &c.  agent  of  the  above  named  A.  B.  makes  oath, 
and  says,  that  as  he  is  informed  and  verily  believes,  &c. 

When  application  is  made  to  a  Judge,  in  vacation,  for  a  capias, 
an  affidavit  of  the  "jjarticular  circumstances"  must  in  like  manner 
be  annexed  to  the  Praecipe ;  and  the  Judge  will  exercise  a  discre- 
tion, in  allowing  or  refusing  the  writ,  and  also  in  fixing  the  amount 
of  bail:  If  allowed,  the  Judge  will  make  the  following  order  on  the 
PiEEcipe. 


Judges  order  for  SrEciAL  Bail  in  Vacation. 

Let  a  capias  issue  upon  the  above  Praecipe;  and  the  Sheriff"  is 
hereby  ordered  to  hold  the  defendant  to  bail  in dollars. 

T.  W.  Judge,  &c. 
To  the  Clerk  of Com.   Pleas,  or,  Slip.    Court. 

Dated,  &c. 


If  application  be  made  to  the  Court  in  term  time,  the  common 
Praecipe  for  a  capias  is  first  filed,  and  then  the  plaintiflT  discloses  to 
the  Court,  by  affidavit  or  otherwise,  the  particular  circumstances, 
which  entitle  him  to  special  bail,  and  thereupon  the  following  order 
is  taken : 


ASSUMPSIT.  VA 


Order  of  Couut  for  Special  Bail. 


A.  B.  ^ 

V.      }  In  Assumpsit. 
CD.) 

On  motion  to  the  Court,  by  Mr.  O.  counsel  for  th«  Plaintiff,  it  is 
ordered  that  a  capias  ad  respondendum  issue  in  this  cause,  against 
the  Defendant  and  tliat  the  Sheriff  hold  him  to  bail  in Dollars. 


Writ  of  Capias  ad  respondendum. 

[Seal.]     The  State  of  Qjiio County,  ss. 

To  the  Shcriif  of  said  County,  Greeting: 

We  command  you  to  take  C.  D.  if  he  may  be  found  in  your 
bailiwick,  and  him  safely  keep,  so  that  you  have  his  body  before  our 
Supreme  Court,  or,  Court  of  Common  Pleas,  of  the  County  afore- 
said, at  the  Court  House  in  said  County,o7i  the  first  day  of  their  next 

term,  to  answer  unto  A.  B.  in  a  plea  oi'  Assumpsit;  Damages 

Dollars :  and  have  you  then  there  this  writ. 

Witness,  T.  T.  Cliicf  Judge  of  our  Supreme  Court,  or, 
President  Judge  of  our  Court  of  Common  Pleas,  aforesaid,  tliis 
day  of A.  D. 

Attest.  T.  C.   Clerk. 


Upon  the  back  of  this  writ,  the  Clerk  endorses  the  cause  of  action, 
and  the  amount  appearing  to  he  due,  or  sworn  to,  and  the  amount 
for  which  hail  is  required  to  he  taken,  as  the  same  are  stated  in  the 
Praecipe,  Judges  order,  or  order  of  Court.  The  same  endorsement 
for  costs  is  also  necessary,  as  the  in  case  of  a  summons.  See, 
summons,  ante.  8. 

For  the  form  o^  alias  ^nd  plurics  capias,  See,  alias  and  pluncs 
summons,  ante.  9. 


14  ASSUMPSIT. 


Testatu3i  Capias. 

[Seal.]     The  State  of  Ohio County,  ss. 

To  the  Sheriff  of  Franklin  County,  Greeting: 

Whereas  we  lately  commanded  our  Sheriff  of  Hcunilton  County 
to  take  C.  D.  if  he  might  be  found  in  his  bailiwick,  and  him  safely 
keep,  so  that  he  should  have  his  body  before  our  Court  of  Common 
Pleas  of  said  Hamilton  County,  at  the  Court  House  in  said  County, 

on  the day  of,  &c.  to  answer  unto  A.  B.  in  a  plea  of  Assumpsit, 

Damages Dollars;  and  our  said  Sheriff  oi  Hamilton  County  hath 

thereon  returned,  that  the  said  C.  D.  was  not  to  be  found  in  his 
baihwick,  upon  which,  on  the  part  of  the  said  A.  B.  before  the  said 
Court  of  Common  pleas  oi  Hamilton  C»unty,  it  is  sufficiently  testi- 
fied, that  the  said  C.  D.  after  the  suing  out  of  the  said  writ  of  capias, 
did  remove  into  the  County  of  Franklin  aforesaid;  therefore  w^e 
command  you  to  take  the  said  C.  D.  if  he  be  found  in  your  bailiwick, 
and  him  safely  keep,  so  that  you  have  liis  body  before  our  said 
Court  of  Common  Pleas  of  Hamilton  County,  at  the  Court  House 
in  said  County,  on  the  first  day  of  their  next  term,  to  answer  unto 
the  said  A.  B.  in  the  same  plea  of  Assumpsit,  Damages Dol- 
lars :  and  have  you  then  there  this  writ. 

Witness,  &c.  [Cojiclude  as  in   the  original  capias, 
ante.  13.] 

When  the  defendant  is  regularly  arrested,  he  must  either  go  to 
prison  for  safe  custody,  or  enter  into  a  bond  with  sureties,  to  be 
approved  of  by  the  Sheriff,  conditioned  for  his  appearance  in  Court, 
at  the  return  of  the  writ — This  is  called  bail  hclow  in  contradistinc- 
tion to  that  bail  which  is  afterwards  put  in  when  the  defendant  does 
appear  upon  the  return  of  the  writ,  and  which  is  sometimes  called 
bail  above. 


ASSUMPSIT.  15 


Bail  Bond  to  the  Siisriff. 

Know  all  men  by  these  presents,  that  we  C,  D.  E,  F.  and  G.  H. 

arc  held,  and  firmly  bound  unto  T,  W.  Sheriff  of  the  County  of 

in  the  sum  of dollars,  [doitble  the  sum  endorsed  on  the  W7-it,']  to 

be  paid  to  the  said  Sheriff,  his  executors,  administrators  or  assigns, 
for  which  payment  well  and  truly  to  be  made,  we  do  hereby  jointly 
and  severally  bind  ourselves,  our  heirs,  executors  and  administra- 
tors, sealed  with  our  seals,  and  dated  this day  of A.  D. 

The  condition  of  the  above  obhgation  is  such,  that  if  the  above 
bound  C.  D.  do  appear  before  the  Court  of  Com?non  Pleas  of  the 

County  of ,  at  the  Court  House  in  said  County,  on  the  first  day 

of  their  next  term,  or  on  the  succeeding  day,  («)  to  answer  to  A.  B.  in 

a  plea  of  Assumpsit,  Damages Dollars,  then  this  obligation  to  be 

void,  otherwise  in  full  force  and  virtue  in  law. 

C.  D.  [Seal.] 
E.  F.  [Seal.] 
G.  H.  [Seal.] 

If  the  defendant  appears  according  to  the  exigency  of  the  writ 
and  the  bail  bond,  fresh  security  is  required  of  him,  who  are  bound 
for  the  payment  of  the  debt  and  costs,  should  the  plaintiff  recover  in 
the  action  ;  or  that  the  defendant  should  be  rendered  into  custody. 
This  is  done  by  the  defendant,  and  his  sureties  entering  into  a 
recognizance  to  that  effect,  which  is  called  j)utting  in  hail  to  the 
action,  or  hail  above,  or,  entering  special  hail.  The  form  of  this 
recognizance  is  prescribed  by  Statute.     Vol.  29.  p.  61.  §.  17. 


(a)  Spocial  bail  must  be  filed  on  tbc  return  day  of  tho  capias,  or  on  tbo 
succeeding  day.     Slat.  vol.  29.  p.  60.  J.  9. 


16  ASSUMPSIT. 


Recooxizance  or  Special  Bail. 

A.  B.  ) 

V.      >  In  Assumpsit. 
C.  D.  ) 

The  State  of  Ohio County,  ss. 

Be  it  remembered,  that,  on  this clay  of A.  D. 

G.  H.  and  E.  F.  of  the  County  of ,  personally  appeared 

before  J.  K.  07ie  of  the  Judges  of  the  Supreme  Court  of  Ohio,  or, 
one  of  the  Judges  of  the  Court  of  Common  Pleas  of  the  County  of 

,  or,  Clerk  of  the  Supreme  Court  of  the  State  of  Ohio,  or, 

Clerk  of  the  Court  of  Comjnon  Pleas  of  the  County  of ,  \as  the 

case  may  &e,]  and  severally  acknowledge  themselves  to  owe  unto 

A.  B.  the  sum  of dollars  \double  the  sum  endorsed  on  the  writ,'\ 

to  be  levied  on  their  several  goods  and  chattels,  lands,  tenements 
and  estates;  upon  condition  that  if  the  defendant  C.  D.  shall  be 
condemned  in  this  action,  at  the  suit  of  A,  B.  the  Plaintiff,  he  shall 
pay  the  costs  and  condemnation  of  the  Court,  or  be  rendered,  or 
render  himself,  into  the  custody  of  the  Sheriff  of  said  County,  for 
the  same,  or  in  case  of  failure,  that  the  said  G,  H.  and  E.  F.  will 
pay  the  costs  and  condemnation  for  him. 

Taken   and  acknowledged,  the  day  and  year  above  written 
before  me. 

J.  K. 


The  bail  piece  is  also  prescribed  by  Statute.   Vol.  29.  p.  Gl. 
^.   17. 

Bail  Piece, 

State  of  Ohio:  Supreme  Court,  or,  Court  of  Common  Pleas,  of 

the day  of ,  A.  D. C.  D.  of  the  County  of ,  is 

delivered  to  bail  on  a  cepi   corpus,  unto  G.  H.  and  E.  F.  of  the 
said  County,  at  the  suit  of  A.  B.  in  a  plea  of  Assumpsit. 

Attest  S.  W.  Ckrk. 


ASSUMPSIT.  17 

It  sometimes  happens  that  after  the  bail  bond  to  the  Sheriff  has 
been  entered  into,  the  conclitiou  ic  broken  by  the  nec^lcct  or  refusal 
of  the  defendant  to  put  in  and  perfect  special  bail  in  due  time  :  in 
which  case  there  are  two  remedies,  at  the  election  of  the  plaintiff; 
he  may  either  take  an  assignment  of  the  bail  bond,  and  bring  an 
action  against  the  bail,  or  he  may  rule  the  Sheriff  to  bring  into  court 
the  body  of  the  defendant,  and  thus  compel  him  to  pay  the  debt 
and  costs,  and  leave  him  to  look  for  his  indemnity  to  the  bail  bond. 
Stat.  vol.  29.  2^.  60.  §.   10. 

Such  is  the  general  outline  of  the  proceedings  enforcing  the 
appearance  of  defendants,  upon  a  capias,  or  of  obtaining  redress 
in  default  thereof:  the  details  are  to  be  found  in  the  statute.  Vol.  29. 
p.  60.  61.  62,  &c.;  and  do  not  come  within  the  scope  of  this  work. 
In  England,  when  the  defendant  is  abroad,  or  keeps  out  of  the 
way,  so  that  he  cannot  be  arrested  or  served  with  process,  the 
plaintiff  on  the  return  of  non  est  inventus  to  the  pluries  capias, 
may  have  a  writ  of  exigi  facias,  and  proceed  to  outlawry.  Outlawry, 
in  civil  actions,  is  putting  a  man  out  of  the  protection  of  the  law, 
so  that  he  is  incapable  of  suing  for  redress  of  injuries,  and  may  be 
imprisoned:  and  he  forfeits  thereby  all  his  goods  and  chattels,  and 
the  profits  of  his  lands,  which  are  seized  by  the  Sheriff  and  sold  for 
the  benefit  of  the  crown.  The  plaintiff  however,  out  of  the  pro- 
ceeds, may  obtain  satisfaction  of  his  debt  and  costs,  upon  applica- 
tion to  the  court  of  exchequer  or  lords  of  the  treasury.  There  is 
nothing  analogous  in  our  law,  to  this  process  of  outlawry:  but  so 
far  as  regards  the  satisfaction  of  the  claims  of  creditors,  where  the 
debtor  absconds  or  is  a  non-resident,  the  same  object  is  efiected  by 
a  writ  of  Attaclnnent,  by  virtue  of  which  the  proj)erty  of  the  debtor 
is  seized  in  the  first  instance,  and  placed  in  the  custody  of  the  law; 
and  after  judgment  obtained,  is  sold  by  the  Sheriff  and  the  proceeds 
applied,  pro  rata,  to  the  satisfaction  of  all  the  creditors.  Stje, 
AttacJtment.  If  a  defendant  however,  at  the  time  of  suing  out 
process,  have  a  residence  in,  or  bean  inhabitant  of  the  county,  the 
court  on  motion,  will  order  a  proclamation  to  issue,  warning  the 
defendant  to  appear  at  a  certain  day  therein  named,  or  that  judg- 
ment will  be  rendered  against  him.  This  proclamation  must  be 
published  three  successive  days  at  the  door  of  the  Court  House,  and 
also  three  times  in  some  newspaper  published  in  the  State;  and  if 
the  defendant  fail  to  appear,  judgment  by  default  may  be  taken 
against  him,  and  his  property  seized  in  execution,  and  sold  by  the 
Sheriff.     Stat.  vol.  29.  p.  118.  §.  6. 

C 


IB  ASSUMPSIT. 


Defendants  Appearance. 


It  is  difficult  to  determine  precisely  what  constitutes  an  appear- 
ance under  our  practice.  In  England,  it  is  said  to  be  the  first  act 
of  the  defendant  in  Court.  This  first  act  formerly  consisted  in  a 
personal  appearance  before  the  Court,  and  causing  an  entry  to  be 
made  on  the  records  of  the  Court,  that  the  defendant  ohtulit  se  in 
propria  persona;  but  it  is  now  the  practice  to  appear  by  attorney, 
and  tliis  appearance  consists  in  filing  common  hail,  in  the  King's 
Bench,  and  by  entering  an  appearance,  in  the  Common  Pleas.  This 
appearance,  which  requires  an  actual  entry  to  be  made  upon  the 
roll,  or  a  memorandum  to  be  filed  with  the  proper  officer,  is  neces- 
sary in  all  cases,  before  the  plaintiffcan  proceed  in  his  suit,  except 
by  declaring  de  bene  esse,  or  conditionally.  1.  Sell.  Prac.  90. 
Our  statute  provides,  that  when  the  Sheriff  or  other  officer  shall 
return  the  summons  or  other  process,  "served  "  the  defendant  shall 
be  considered  as  being  in  Court,  and  may  be  preceded  against  ac- 
cordingly. Vol.  29.  p.  117.  §,  3.  This  statute  does  not  embrace 
a  capias,  as  the  return  upon  a  capias  is,  "I  have  taken  the  body." 
Its  object  is  the  same  as  the  statutes,  12.  G.  1.  c.  29.  and  5.  G.  II. 
c.  27;  wliich  authorize  the  plaintiff  to  enter  an  appearance  for  the 
defendant;  that  is,  it  enables  the  plaintiff  to  proceed  on  to  final 
judgment  and  execution,  without  any  actual  appearance  on  the 
part  of  the  defendant.  In  our  practice  a  formal  appearance  is 
altogether  unnecessary.  When  the  first  process  is  a  capias,  the 
filing  special  bail  is  considered  an  appearance,  the  same  as  filing 
common  bail,  in  the  King's  Bench.  When  the  first  process  is  a  sum- 
mons, the  filing  a  plea,  or  demurrer,  or  the  doing  any  other  act  of 
record,  would  constitute  an  appearance,  for  most  purposes. 

It  is  a  well  settled  rule,  that  an  appearance  cures  all  errors  and 
defects  in  process.  1.  Stra.  155.  3.  T.  R.  QU.  1  jB.  ^  P.  344. 
3.  Ohio  Rep.  272.  Ohio  Conds.  569.  After  a  defendant  has 
appeared,  there  is,  in  general,  an  end  of  the  mesne  process,  and 


ASSUMPSIT.  19 

therefore,  if  after  being  sued  by  a  wrong  christian  name,  he  ap- 
pears by  his  right  name,  the  plaintiff  may  declare  against  him 
in  his  right  name.  2  Wils.  393.  1  Petersd.  Abg.  724.  This 
rule  does  not  however  preclude  the  defendant  from  coming  into 
Court,  and  moving  to  quash  the  process  for  informality,  or  set  aside 
the  proceedings  for  irregularity.  But  advantages  of  this  sort  must 
be  taken  hefore  appearance. 

The  summons  having  been  returned  "served,"  or  special  bail 
having  been  entered,  the  plaintiff  must  file  his  declaration  within 
the  time  limited  by  the  rules  of  Court,  or  he  will  be  non-suited. 


ASSUMPSIT. 


DsCLARATIONS. 


No  uniform  system  of  pleading  has  ever  been  established  in  the 
State  of  Ohio,  although  the  substance  of  the  English  system,  as  laid 
down  in  Chitty's  pleadings,  and  other  English  authors,  has  in  gen- 
eral been  regarded  as  a  part  of  our  law.  In  several  of  the  United 
States,  the  English  forms  have  been  greatly  simplified,  and  prece- 
dents from  those  States  have  been  repeatedly  held  good,  by  our 
Supreme  Court.  2  Ohio  Rep.  5.  Ohio  Conds.  230.  3  Ohio.  Rep. 
3G8.  Ohio  Conds.  608,  (a)  The  extreme  length  of  the  English 
precedents  has  long  been  a  standing  complaint  even  in  England, 
and  one  of  the  beneficial  effects  of  the  late  attempts  at  Reform  in 
that  Kingdom,  has  been  to  introduce  into  their  practice  a  new  set 
of  precedents  of  declarations  in  Assumpsit,  and  to  some  extent,  in 
Debt;  which  has  entirely  superseded  the  older  forms  as  found  in 
Chitty  and  other  authors.  These  precedents,  which  are  set  forth 
at  length  in  20  Com.  Law  Rep.  323;  and  in  Appendix  No.  1,  to 
this  volume,  are  more  full  than  those  of  a  similar  kind  in  some  of 
the  United  States;  but  upon  examination,  they  will  be  found  the 
most  perfect  forms  of  declarations,  that  probably  have  ever  been 


(o)  Ever  since  the  American  Revolution,  there  has  been  a  constant  strug- 
gle to  disencumber  the  science  of  Law  of  its  useless  appendages,  and  the 
steady  aim  has  been  to  arrive  at  the  merits  and  justice  of  every  cause. 
Hence  the  great  degree  of  liberality  in  giving  matters  in  ev'dence  under 
the  general  issue,  which  were  formerly  pleaded  specially:  the  liberal  Stat- 
utes of  Amendments  and  Jeofails;  the  extensive  practice  of  submitting 
^'as:reed  cases;''  and  the  almost  total  disuse  of  pleas  in  Abatement,  a  species 
of  iPleading  which  occupies  no  small  proportion  of  the  older  authors.  There 
are  now  nearly  three  hundred  volumes  of  American  reports,  and  the  title, 
Abatement,  is  rarely  to  be  met  with  in  their  Table  of  Contents.  But  there 
may  be  danger  of  an  opposite  extreme,  where  Form  and  Justice  may  be  sa- 
crificed together;  especially  under  a  system  like  ours,  where  neither  the 
reputation  or  the  fees  of  a  Lawyer  have  any  connexion  whatever  with  the 
number  or  magnitude  of  his  folios.  Hence  originated  a  practice,  which  at 
n  period  not  very  remote,  prevailed  to  considerable  extent,  in  some  parts  of 
of  this  State,  and  whicli  was  denominated  ^'Prairie  Pleading."  Upon  the 
back  of  the  writ  the  plaintiff  filed  his  declaration  in  this  form:  "J^ai-r.  in 
Short."  To  this  the  defendant  plead  thus:  "Plea  in  Short."  Upon  the 
issue  thus  made  up,  the  parties  went  to  the  Jury.  This  mode  of  pleading 
was  abolished  by  the  following  rule  of  a  late  Chief  Justice  of  our  Supreme 
Court:  That  in  all  cases  where  the  declaration  is  in  Sho7-t,  and  the  plea  in 
Short,  the  Judgment  of  the  Court  shall  also  be  in  Short,  and  the  cause 
ohall  stand  dismissed  with  costs. 


ASSUMPSIT.  21 

used  in  England,  or  in  any  other  country,  where  the  common  law 
of  England  prevails.  So  far  as  they  extend,  they  have  been  co- 
pied literally  into  this  work,  with  no  other  variations  than  such  as 
were  necessary  to  adapt  them  to  our  practice;  and  they  have  been 
made  the  standard  of  all  other  declarations  and  pleadings  contained 
in  the  following  pages. 


On  Pbomissory  Notes. 


^     Supreme  Court,  or,  Courtj)f  Co?n- 


No.   1.     Payee  vs.  3IaJcer.   |  mo7i  Pleas: Term.    [The  Term 

to  which  the  writ  was  returned,  or, 
the  Term  at  which  the  cause  was 
brought  into  Court  hy  appeal,  or 
certiorari']  A.  D. 


V, 


CorNTY,  ss. 


A.  B.  complains  of  C.  D.  (a)  in  a  plea  of  assumpsit,  for  that 

whereas  *  the  said  C.  D.  on at made  his  promissory  note 

in  writing,  and  delivered  the  same  to  the  said  A.  B.  and  thereby 

promised  to  pay  to  the  said  A.  B.  or  order dollars,  in days 

after  the  date  thereof,  which  period  has  now  elapsed,  and  the  said 
C.  D.  then  and  there,  in  consideration  of  the  premises,  promised  to 
pay  the  amount  of  the  said  note  to  the  said  A.  B.  according  to  the 
tenor  and  effect  thereof.  Q))     Yet  the  said  C.  D.  hath  disregarded 


(a)  If  a  writ  bo  returned  "served"  as  to  one  or  more  of  several  defendants, 
and  "not  found"  as  to  others,  a  suggestion  of  such  return,  as  to  the  defend- 
ants not  found,  must  be  made  in  the  declaration.  Slat.  Vol.  29.  p.  04,  } 
36.  The  suggestion  may  be  made  immediately  after  the  (a)  in  the  above  pre- 
cedent, and  in  the  form  following:  "the  Sheriff  of  said  County  having  re- 
turned not  found  as  to  E.  F.  and  G.  H.  against  whom  process  in  this  cause 
was  also  issued."  The  declaration  then  sets  forth  the  cause  of  action  in  the 
same  manner  as  if  all  the  defendants  had  been  served.  The  defendants 
who  were  not  served,  may  afterwards  be  made  parties  to  the  judgment,  by 
scire  facias.  See,  Scire  Facias.  All  declarations  may  comvicnce  as  in  tho 
above  precedent,  whether  the  action  be  originally  brought  in  the  Common 
Pleas,  or  removed  into  that  Court  by  appeal  or  certiorari,  from  a  Justice  of 
the  Peace. 

(i)  If  the  common  counts  arc  added,  which  is  always  advisable, they  may 
be  inserted  immediately  after  the  (/>)  in  the  above  precedent,  thus:  "And 

also  for  that  whereas,  the  said  C.  D.  on at, was  indebted  to  the 

said  A.  B.  in dollars,  for  the  price  and  value  of  goods,  then  and  there 

bargained  and  sold  by  the  plaintiff  to  the  defendant,  at  his  request,  &:c. — 
[Add  the  other  common  countt  aa  in  No.  15,  post,  aiid  conclude  as  ihcrein 


23  ASSUMPSIT. 

his  promises,  and  hath  not  paid  the  said  sum  of  money,  or  any  part 

thereof;  to  the  damage  of  the  said  A.  B. dollars  [the  amount 

stated  in  the  writ;  or  in  cases  of  appeal  or  certiorari,  an  amount 
sufficiently  large  to  cover  thej)laintiff's  demand,']  and  thereupon  he 
brings  suit,  6z;c. 

By  T.,  his  Atty. 


No.  2.     Indorsee  vs.  Maker. 

[Proceed  as  in  No.  1,  to  the  * — the 

said  C.  D.  on at made  his  promissory  note  in  writing, 

and  then  and  there  delivered  the  same  to  E.  F.  and  thereby  pro- 
mised to  pay  the  said  E.  F.  or  order dollars  in days 

after  the  date  thereof,  which  period  has  now  elapsed,  and  the  said 
E.  F.  then  and  there  endorsed  the  same  to  the  said  A.  B.,  whereof 
the  said  C.  D.  then  and  there  had  notice,  and  then  and  there,  in 
consideration  of  the  premises,  promised  to  pay  the  amount  of  the 
said  note  to  the  said  A.  B.  according  to  the  tenor  and  effect  thei'e- 
of.     Yet,  &c.  {conclude  as  in  No.  1.]  (a) 


No.  3.     Partners  vs.  Maker. 

[Commence  as  in  No.  1. A.  and  B. 

partners  in  trade,  under  the  name  of  A.  and  Co.  complain  of  C.  D. 

in  a  plea  of  assumpsit,  for  that  whereas,  the  said  C.  D.  on at 

made  his  promissory  note  in  writing,  and  delivered  the  same 

to  the  said  A.  and  B.  and  thereby  promised  to  pay  to  the  said  A. 
and  B.  by  the  said  name  of  their  firm  of  A  and  Co. Dollars 


directed.]     If  the  maker  of  a  note  has  not  signed  his  real  name,  or  only  a 

part  of  it,  say,  "under  the  signature  of ,  &c."     If  the  note  he  dated  in 

a  foreign  country,  as  at  Paris,  say,  "at  Paris,  to  wit,  at  T."  [Where  the 
action  is  brought.]  A  declaration  upon  a  note,  not  negotiable,  need  not  set 
out  the  consideration  or  the  original  contract.  1  Ohio  Rep.  115.  Ohio 
Conds.  56.  3  Ohio  Rep.  368.  Ohio  Conds.  608.— A  note  partly  destroyed 
by  accident,  may  be  declared  upon  as  entire.  2  Ohio  Rep.  13.  Ohio 
Conds.  234. 

[a)  If  the  notejbe  made  by  an  agent,  say — "the  said  C.  D.  on  — at — by 
one  W.  his  agent,  for  that  purpose  duly  authorized,  made  his  promissory 
note,  &c." 


ASSUMPSIT.  23 

in days  after  the  date  thereof,  which  period  has  now  elapsed, 

and  the  said  C.  D.  then  and  there  in  consideration  of  the  premises 
promised  to  pay  the  amount  of  the  said  note  to  the  said  A.  and  B. 
by  the  said  name  of  their  firm  of  A  and  Co.  according  to  the 
tenor  and  effect  thereof:  yet,  &c.  [Conclude  as  in  No.  1.] 


No.  4.     Payee  vs.  Partners. 

[Commence  as  in  No.   1. A.  B. 

complains  of  C.  and  D.  for  that  whereas  on at the  said 

C.  and  D.  were  partners  in  trade,  under  the  name  of  C.  and  Co. 

and  so  being  partners,  the  said  C.  and  D.  on at made  a 

certain  promissory  note  in  writing,  and  delivered  the  same  to  the 
said  A.  B.  and  thereby  under  the  name  of  the  said  firm  of  C.  and 

Co.  promised  to  pay  to  the  said  A.  B. Dollars  in days  after 

the  date  thereof,  which  period  has  now  elapsed,  and  the  said  C. 
and  D.  under  the  name  of  the  said  ^firm  of  C.  and  Co.  then  and 
there  in  consideration  of  the  premises,  promised  to  pay  the  amount 
of  the  said  note  to  the  said  A.  B.  according  to  the  tenor  and  effect 
thereof:  yet,  &:c.  [Conclude  as  in  No.  !.](«) 


No.  5.     Indorsee  vs.  Indorsor. 

[Proceed  as  in  No.  1.  to  the  * one 

E.  F.  on at made  his  promissory  note  in  writing,  and 

thereby  promised  to  pay  to  X.  Y.  or  order Dollars  in 

days  after  the  date  thereof,  which  period  has  now  elapsed,  and  then 
and  there  delivered  the  said  note  to  the  said  X.  Y.  and  the  said  X. 
Y.  then  and  there  endorsed  the  same  to  the  said  C.  D.  and  the  said 
C.  D.  then  and  there  endorsed  the  same  to  the  said  A.  B.  [or,  and 
the  said  C.  D.  then  and  there  endorsed  the  same  to  Q.  R,  and  the 
said  Q.  R.  then  and  there  endorsed  the  same  to  the  said  A.  B.~\  and 


(a)  If  the  suit  bo  agrainst  a  survivinnf  partner,  sny,  "For  that  whereas 
"the  said  C.  and  one  D.  tlien  livinjj,  but  Bince  deceased,  were  partners, 
&c."  and  conclude;  "yet  the  said  (!.  and  D.  in  the  life  time  of  the  said 
D.  disregarded  tiicir  promise  and  did  not  pay  said  sum  of  money  or  any 
part  thereof  to  tiie  said  A.  ]},  nor  Iiath  the  said  C.  since  the  death  of  the 
eaid  D.  paid  the  same  or  any  part  thereof,  &c."' 


24  ASSUMPSIT. 

the  said  E.  F.  did  not  pay  the  c.niount  thereof,  although  the  same 
was  there  presented  to  him  on  the  day  when  it  became  due;  of  all 
which  the  said  C.  D.  then  and  there  had  due  notice.  And  whereas 
the  defendant  afterwards,  on  &c.  in  consideration  of  the  premises, 
then  and  there  promised  to  pay  the  amount  of  said  note  to  the  said 
A.  B.  on  request ;  yet  he  hath  disregarded  his  promises,  and  hath 
not  paid  the  same,  or  any  part  thereof;  to  the  damage,  &c.  [€071- 
clude  as  in  No.  1.]  («) 


No.  6.     Indorsee  vs.  Executor  of  Maker. 

\_Co77ime7ice  as  171  No.  1.  A.  B.  com- 
plains of  C.  D.  as  Executor  of  E.  F.  deceased,  in  a  plea  of  assiwip- 
sit,  for  that  whereas  the  said  E.  F.  in  his  life  time,  on at 


made  his  promissory  note  in  writing,  and  thereby  promised  to  pay 

to  X.  Y.  or  order Dollars  in days  after  the  date  thereof, 

which  period  has  now  elapsed,  and  then  and  there  delivered  the 
said  note  to  the  said  X.  Y.  and  the  said  X.  Y.  then  and  there  en- 
dorsed the  same  to  the  said  A.  B.  whereof  the  said  E.  F.  then  and 
there  had  notice,  and  then  and  there  in  consideration  of  the  premi- 
ses, promised  to  pay  the  amount  of  said  note  to  the  said  A.  B.  ac- 
cording to  the  tenor  and  effect  thereof;  yet  the  said  E.  F.  in  his 
life  time  disregarded  his  promises  and  did  not  pay  the  amount  ol 
said  note  or  any  part  thereof,  nor  has  the  said  C.  D.  as  his  Execu- 
tor, since  his  death  paid  the  same  or  any  part  thereof;  To  the 
damage,  &c.  \_Co7iclude  as  iti  No.  1.] 


The  following  averments,  ofivaTit  of  effects,  and,  that  the  maker 
could 7iot he foimd,  maybe  used  according  to  circumstances. 

And  the  said  A.  B.  avers,  that  at  the  time  of  making  said 

promissory  note,  and  at  the  time  when  the  same  was  presented  for 
payment  as  aforesaid,  the  said,  E.  F.  \the  maker']  had  not  in  his 
hands  any  effects  of  the  said  W.  nor  had  the  said  E.  F.  received 


(a)  A  declaration,  upon  an  endorsement  of  a  promissory  note  guarantying 
the  payment  by  the  maker,  must  set  out  the  consideration  upon  which  uuch 
endorsement  was  made.     2  Ohio  Rep.  430.     Ohio  Conds.  430. 


ASSUMPSIT.  35 

any  consideration  from  the  said  W.  for  making  or  paying  said 
lote;  but  the  said  E.  F.  made  the  said  note  for  the  accommoda- 
ion,  and  at  the  request  of  the  said  W.  and  the  said  W.  hath  not 
sustained  any'damages  by  reason  of  his  not  having  had  notice  of 
the  non-payment  by  the  said  E.  F.  of  the  amount  of  said  note,  &;c. 

And  the  said  A.  B.  avers,  that  when  the  said  note  became 


due,  on diligent  search  and  enquiry  was  made  after  the  said 

E.  F.  at [where  the  note  uias])ayable,'\  that  tlie  said  note  might 

be  presented  to  him  for  payment,  but  the  said  E.  F.  could  not  be 
found,  nor  did  he  then,  or  at  any  time  before  or  since,  pay  the 
amount  of  the  said  note,  &;c. 


Inland  Bills  of  Exchange. 


No.  7.  Drawer,  heing  also  Payee,  vs.  Acceptor. 

[Proceed  as  in  No.   1.  to  the  * the  said  A. 

B.  on at made  his  bill  of  exchange  in  writing,  and  di- 
rected the  same  to  the  said  C.  D.  and  thereby  required  the  said 

C.  D.  to   pay  to  the  said  A.  B. Dollars  in days  after 

the  date,  or,  sight,  thereof,  which  period  has  now  elapsed ;  and  the 
said  C.  D.  then  and  there  accepted  the  said  bill,  and  promised  the 
said  A.  B.  to  pay  the  same  according  to  the  tenor  and  effect  there- 
of, and  of  his  acceptance  thereof,  but  did  not  pay  the  same  wiien 
due:  Yet,  &c.  [Conclude  «s  i«  No.  1.] 


No.   8.     Drawer,  not  heing  Payee,  vs.  Acceptor. 

[Proceed  as  in  No.  1.  to  the  * the 

said  A.  B.  on at made  his  bill  of  exchange  in  writing, 

and  directed  the  same  to  the  said  C.  D.  and  thereby  required  the 

said  C.  U.  to  pay  to  C.  P.  or  order Dollars  in days  after 

the  date,  or,  sight,  thereof,  which  period  has  now  elapsed,  and  then 
and  there  delivered  the  same  to  the  said  C.  P.  and  the  said  C.  D. 
then  and  there  accepted  the  same,  and  promised  the  said  A.  B.  to 
pay  the  same  according  to  the  tenor  and  elVect  thereof,  and  of  his 
D 


26  ASSUMPSIT. 

said  acceptance  thereof,  yet  he  did  not  pay  the  amount  thereof 
although  the  said  bill  was  there  presented  to  him  on  the  day  when 
it  became  due;  and  thereupon  the  same  was  then  and  there  return- 
ed to  the  said  A.  B.  of  all  which  the  defendant  then  and  there  had 
notice:  yet,  &;c.  [^Conclude  as  in  No.  1.]  , 


No.  9.     Indorsee  vs.  Acceptor. 

[P-Toceed  as  in  No.  1 .  to  the  * one 

E.  F.  on at made  his  bill  of  exchange  in  writing,  and 

directed  the  same  to  the  said  C.  D.  and  thereby  required  the  said 

C.  D.  to  pay  to  the  said  E.  F.  or  G.  H.  or  order dollars  in 

days  after  the  date  or  sight  thereof,  which  period  is  now  elapsed, 
and  the  said  C.  D.  then  and  there  accepted  the  said  bill,  and  the  said 
E.  F.  or  G.  H.  then  and  there  indorsed  the  same  to  T.  S.  and  the 
said  T.  S.  then  and  there  indorsed  the  same  to  the  said  A.  B.  of  all 
which  the  said  C.  D.  then  and  there  had  due  notice,  and  then  and 
there  promised  the  said  A.  13.  to  pay  the  amount  thereof,  according 
to  the  tenor  and  effect  thereof,  and  of  his  acceptance  thereof:  yet, 
&c.  \_Conclude  as  in  No.  1.] 


No.   10.     Payee  v^.  Acceptor. 

[Proceed  as  in  No.  1.  to  the  * one  E.  F. 

on at made  his  bill  of  exchange  in  writing,  and  directed 

the  same  to  the  said  C.  D.  and  thereby  required  the  said  C.  D.  to 

pay  to  the  said  A.  B. Dollars  in days  after  the  date,  or, 

sight,  thereof,  which  period  has  now  elapsed;  and  the  said  C.  D. 
then  and  there  accepted  the  same,  and  promised  the  said  A.  B.  to 
pay  the  same  according  to  the  tenor  and  efiect  thereof,  and  of  his 
acceptance  thereof :  Yet,  &c.  [Conclude  as  in  No.  1.] 


No.   11.     Payee  on  non-acceptance  vs.  Drawer. 

[Proceed  as  in  No.  1.  to  the  * the 

said  C.  D.  on at made  his  bill  of  exchange  in  writing, 

and  directed  the  same  to  T.  S.  and  thereby  required  the  said  T.  S. 


ASSUMPSIT.  27 

to  pay  to  the  said  A.  B. dollars  in days  after  the  date,  or, 

sight,  thereof,  and  then  and  there  delivered  the  same  to  the  said  A. 
B.  and  the  same  was  then  and  there  presented  to  the  said  T.  S.  for 
acceptance,  and  the  said  T.  S.  then  and  there  refused  to  accept  the 
same ;  of  all  which  the  said  C.  D.  then  and  there  had  due  notice ; 
and  whereas  the  said  C.  D.  afterwards,  on  —  &c.  in  consideration 
of  the  premises,  then  and  there  promised  to  pay  the  amount  of  said 
bill  to  the  said  A.  B.  on  request,  yet  he  hath  disregarded  liis  pro- 
mises, and  hath  not  paid  the  amount  of  said  bill,  or  any  part  there- 
of: to  the  damage,  &c.  ^Conclude  as  in  No.  L] 


No.  12.     Indorsee,  on  non-acceptance  vs.  Drawer. 

[Proceed  as  in  No.  1 .  to  the  * the  said 

C.  D.  on at made  his  bill  of  exchange  in  writing,  and 

directed  the  same  to  T.  S.  and  thereby  required  the  said  T.-  S.  to 

pay  to  the  order  of  the  said  C.  D. Dollars  in days  after 

tlic  date,  or,  sight,  thereof,  and  the  said  C.  D.  then  and  there  indor- 
sed the  same  to  the  said  A.  B.  \_or,  the  said  C.  D.  then  and  there 
indorsed  the  same  to  L.  M.  and  the  said  L.  M.  then  and  there  in- 
dorsed the  same  to  the  said  A.  jB.]  and  the  same  was  then  and  there 
presented  to  the  said  T.  S.  fur  acceptance,  and  the  said  T.  S.  then 
and  there  refused  to  accept  the  same;  of  all  which  the  said  C.  D. 
then  and  there  had  due  notice:  and  whereas,  &c.  [Conclude  as  in 
No.  11.] 


No.   13.     Indorsee,  on  noa-acccj)tancc,\'s.  Indorscr. 

[Proceed  as  in  No.  1.  to   the  *  one 

N.  O.  on at made  his  bill  of  exchange  in  writing,  and 

directed  the  same  to  P.  C^.  and  thereby  required  the  said  P.  Q.  to 

[)ay  to  his  order dollars  in days  after  tlte  dale,  (n\  sight, 

thereof,  and  the  said  N.  O.  then  luid  there  indorsed  tiic  said  bill  \i) 
the  said  ('.  D.  and  the  said  C.  D.  then  and  there  indorsed  the  same 
to  the  said  A.  B.  and  tiie  same  was  then  and  there  presented  to  the 
said  P.  C^.  for  ac(:e[!tan<"e,  and  tin*  said  P.  Q.  tlien  and  there  refused 
to  accept  the  same  ;  of  all  w  Inch  the  said  C.  D.  then  and  tliere 
had  notice  :  and  whereas,  kkc.  [Coitrhidc  as  in   No.  11.] 


28  ASSUMPSIT. 


No,   14.     Indorsee,  on  non-acceptance,  vs.  Payee. 

[Proceed  as  in  No.  1.  to  the  * one 

N.  C.  on at made  his  bill  of  exchange  in  writing,  and 

directed  the  same  to  P.  Q.  and  thereby  required  the  said  P.  Q.  to 

pay  to  the  said  C.  D.  or  order dollars  in days  after  the  date, 

or,  sight,  thereof,  and  then  and  there  delivered  the  same  to  the  said 
C.  D.  and  the  said  C.  D.  then  and  there  indorsed  the  said  bill  to  the 
said  A.  B.  "and  the  same  was  then  and  there  presented  to  the  said 
P.  Q.  for  acceptance,  and  the  said  P.  Q.  then  and  there  refused  to 
accept  the  same ;  of  all  which  the  said  C.  D.  then  and  there  had 
due  notice  :  and  whereas,-&c.  [Conclude  a3  in  No.  11.] 


Directions  for  declarations  on  Bills  where  the  action  is  brought 
after  the  time  of  payment  expired.  Schedule  of  Forms,  20 
Eng.  Com.  Law  Rep.  327. 


1.     On  bills  payable  after  date. 

If  the  declaration  be  against  any  party  to  the  bill  except  the 
drawer  or  acceptor,  and  the  bill  be  payable  at  any  time  after  date, 
and  the  action  not  brought  till  the  time  is  expired,  it  will  be  neces- 
sary to  insert,  as  in  declarations  on  promissory  notes,  immediately 
after  the  words  denoting  the  time  appointed  for  payment,  the  fol- 
lowing words,  viz.  which  period  has  noiu  elapsed;  and  instead  of 
averring  that  the  bill  was  presented  to  the  drawee  for  acceptance, 
and  that  he  refused  to  accept  the  same,  to  alledge  that  the  drawee 
[naming  him]  did  not  pay  the  said  bill,  although  the  same  was  pre- 
sented to  him  on  the  day  when  it  became  due. 


II.     On  bills  payable  after  sight. 

If  the  declaration  be  against  any  party  except  the  drawee  or 
acceptor,  and  the  bill  be  payable  at  any  time  after  sight,  it  will  be 
necessary  to  insert  after  the  words  denoting  the  time  appointed  for 
payment,  the  following  words:  viz.  and  the  said  drawer  [naming 


ASSUMPSIT.  29 

him]  then  and  there  saw  and  accepted  the  sa7ne,  and  the  said  period 
has  now  elapsed ;  and  instead  of  alleging  that  the  bill  was  present- 
ed for  acceptance  and  refused,  to  allege  that  the  drawer  [naming 
him']  did  not  pay  the  said  hill,  although  the  same  was  presented  to 
him  on  the  day  when  it  became  due. 


III.     On  bills  or  notes  payable  at  sight. 

If  a  note  or  hill  be  payable  at  sight,  the  form  of  the  declaration 
must  be  varied  accordingly,  which  may  be  easily  done. 


IV.     On  Foreign  bills. 

Declarations  on  foreign  bills  may  be  drawn  according  to  the 
principles  of  these  forms,  with  the  necessary  variations. 


No.  15.     Common  Counts. 

[^Proceed  as  in  No.  1.  to  the  * the  said 

C.  D.  on at was  indebted  to  the  said  A.  B.  in  -—  dollars 

for  the  price  and  value  of  goods,  then  and  there  bargained  and 
sold  by  the  plaintiff  to  the  defendant  at  his  request: 

And  in dollars  for  the  price  and  value  of  goods,  then  and 

there  sold  and  delivered  by  tiie  plaintiff  to  the  defendant  at  his 
request : 

And  in dollars  for  the  price  and  value  of  work  then  and 

there  done,  and  materials  for  the  same  provided  by  the  plaintiff 
for  the  defendant  at  his  request : 

And  in dollars  for  money  then  and  there  lent  by  the  plaintilf 

to  tiie  defendant  at  his  ro({uest : 

And  in dollars  for  money  then  and  there  paid  by  the  i^lain- 

tifffbr  the  use  of  the  detendant  at  his  request : 

And  in dollars  for  money  ihen  and  there  received  by  the 

defendant  for  the  use  of  the  plaintilf: 

And  in dollars  for  m<tney  found  to  l)c  due  from  the  defend- 
ant to  the  plaintiff  on  an  account  then  and  there  stated  between 
ihcm. 


;jo  ASSUMPSIT. 

And  whereas  the  defendant  afterwards,  on (a)  in  considera- 
tion of  the  premises,  then  and  there  promised  to  pay  the  said  se- 
veral sums  of  money  to  the  plaintiff  on  request;  yet  he  hath  dis- 
regarded his  promises,  and  hath  not  });ud  the  said  several  sums  of 
money  nor  either  of  them,  nor  any  part  thereof;  to  the  damage  of 
the  plaintiff" dollars,  and  thereupon  he  brings  suit,  &c. 


If  the  declaration  contains  one  or  more  counts  against  the  maker 
of  a  note,  or  acceptor  of  a  bill  of  exchange,  or  other  special  count, 
it  will  be  proper  to  place  them  first  in  the  declaration,  and  then 

conclude  thus :     "And  whereas  the  defendant  afterwards  on 

{a)  in  consideration  of  the  premises,  then  and  there  promised  to 
pay  the  said  last-mentioned  several  sums  of  money  to  the  plaintiff, 
on  request ;  yet  he  hath  disregarded  his  promises,  and  hath  not 
paid  the  said  several  sums  of  money,  nor  either  of  them,  nor  any 
part  thereof:  to  the  damage  of  the  plaintiff dollars,  and  there- 
upon he  brings  suit,  &c. 


Agreements  and  special  Promises. 


No.   10.     l^or  refusing  to  deliver  goods. 

[Proceed  as  in  No.  1 .  to  the  *  the  said 

C,  D.  on at sold  to  the  said  A.  B.  ten  hogsheads  of  sugar, 

for  the  sum  of dollars,  then  and  there  in  hand  paid  to  the  said 

C.  D.  by  the  said  A.  B.  and  for  the  further  sum  of dollars  to  be 

paid  to  the  said  C.  D.  upon  the  delivery  of  said  ten  hogsheads  of 

sugar,  and  the  said  C.  D.  on at in  consideration  thereof, 

and  that  the  said  A.  B.  at  the  request  of  the  said  C.  D.  promised 

to  pay  him  the  said  sum  of dollars  on  the  delivery  of  said  ten 

hogsheads  of  sugar,  promised  the  said  A,  B.  to  deliver  him  the 

said  ie7i  hogshead  of  sugar  on  or  before :  yet  the  said  C.  D. 

hath  disregarded  his  promises,  and  hath  not  delivered  the  said  ten 


{a)  This  blank  may  be  filled   with  any   day  before  the  commencement  of 
the  eiiit,  and  ajlcr  the  money  demauded  in  the  declaration  became  due. 


ASSUMPSIT.  31 

hogsheads  of  sugar,  or  any  part  thereof:  to  the   damage,  &ic. 
[Conclude  as  in  No.  1.] 


No.    17.      Tlie  like,  upon  request.     1  East.  203. 

[Proceed  as  in  No.  1.  to  the    *    on 

at in  consideration  that  the  said  A.  B.  at  the  request  of  the  said 

C.  D.  had  then  and  there  bought  of  the  said  C.  D.  a  large  quantity, 
to  wit,  ten  tons  of  malt,  for  a  price  then  and  there  agreed  upon 
between  them,  he  the  said  C.  D.  promised  the  said  A.  B.  to  deliver 
him  the  said  ten  tons  of  malt,  upon  request;  and  the  said  A.  B. 

avers  that  although  he  did  on at request  the  said  C.  D.  to 

deliver  said  ten  tons  of  malt,  and  was  then  and  there  ready  to  pay 
the  said  C.  D.  for  the  same,  according  to  the  terms  of  said  sale,  and 
was  then  and  there  ready  and  offered  to  receive  said  ten  tons  of 
malt ;  yet  the  said  C.  D  did  not  then  and  there,  nor  at  any  time 
before  or  since,  deliver  the  said  ten  tons  of  malt  or  any  part  thereof; 
to  the  damage,  &c.  [Conclude  as  in  No,   1.] 

No.  18.     On  an  award  hy  Parol  Submission. 

[Proceed  as  in  No.  1.  to  the  *    on 

at there  were  divers  difficulties  and  controversies  between  the 

said  A.  B.  and  C.  D.  concerning  their  mutual  accounts,  debts,  and 
demands  ;  and  the  said  A.  B.  and  C.  D.  on at chose  and  ap- 
pointed one  E.  F.  to  hear  and  determine  for  them,  all  said  difficul- 
ties and  controversies,  and  then  and  there  mutually  promised  and 
agreed  with  each  other  to  stand  to  and  abide  by  the  award  of  the 

said  E.  F.  thereupon  :  and  the  said  E.  F.  afterwards  on at 

heard  the  said  A.  B.  and  C.  D.  upon  the  premises,  and  then  and 
there  aw^ardcd  that  the  said  C  D.  should  pay  to  the  said  A.  B.  a 
balance  of dollars,  on  demand,  and  then  and  there,  or,  after- 
wards, to  wit,  on notified  the  said  A.  B.  and  C.  D.  thereof:  yet 

the  said  C.  D.  though  often  requested,  hath  not  jiaid  the  said  sum 
of dollars,  nor  any  part  thereof:  to  the  damage,  &c.  [Con- 
clude as  in  No.  1.] 

No.   11).     On  a  note  pai/able  in  Tkade. 

[Proceed  as  in  No.   1.  to  (he  '   th(^ 


32  ASSUMPSIT. 

said  C,  D.  on  at made  his  certain  note  in  writing,  and 

delivered  the  same  to  the  said  A.  B.  and  iherehyfo?- value  received, 
(a)  promised  to  pay  and   dehver  to  the  said  A.  B.  or  order,  500 

luishels-of  wheat  at on  or  before then  next  ensuing,  wliich 

period  has  now  elapsed  :  and  the  said  A.  B.  avers  that  the  said 

wlieat  at  said  time  and  place  of  delivery  was  worth dollars 

per  bushel,  and  that-he  was  then  and  there  ready  to  receive  the 
same  ;  yet  the  said  C.  D.  did  not  then  and  there,  nor  hath  he  at 
any  time  before  or  since,  delivered  the  said  wheat  or  any  part 
thereof:  to  the  damage,  &c.  \_Conclude  as  in  No.  1.] 

No.  20.     The  like,  the  price  being  agreed  upon. 

l_P7'oceed  as  in  No.  1.  to  the  * the  said 

C.  D.  on at made  his  certain  note  in  writing,  and  delivered 

the  same  to  the  said  A.  B.  and  thereby,  for  value  received,  (a)  pro- 
mised to  pay  to  the  said  A.  B.  or  order  five  hundred  dollars,  in 
wheat,  at  fifty  cents  per  bushel,  to  be  delivered  to  the  said  A.  B. 

at on  or  before then  next  ensuing,  wliich  period  has  now 

elapsed ;  and  although  the  said  A.  B.  was  then  and  there  ready  to 
receive  the  said  wheat ;  yet  the  said  C.  D.  did  not  then  and  there, 
nor  hath  he  at  any  time  before  or  since,  delivered  the  said  wheat, 
or  any  part  thereof;  to  the  damage,  &c.  [Conclude  as  in  No.  1.] 

No.  21.     On  a  promise  to  take  back  a  horse, 
if  unsound,  and  refund  the  price. 

[Proceed  as  in  No.    1.  to  the  *  the 

said  C.  D.  on at in  consideration  that  the  said  A.  B.  had 

then  and  there,  at  the  request  of  the  said  C.  D.  bought  of  liim  a 
certain  horse  for  the  price  of  one  hun  dred  dollars,  then  and  there 
paid  by  the  said  A.  B.  to  the  said  C.  D.  he  the  said  C.  D.  then  and 
there  promised  the  said  A.  B.  thatif  he  would  receive  the  said  horse, 
and  the  same  should  prove  unsound,  he  the  said  C.  D.  would  take 
back  the  said  horse,  and  return  to  the  said  A.  B.  the  said  sum  of 


(a)  A  declaration  upon  a  note  not  negotiahle  need  not  set  out  the  consid- 
eration or  original  contract.  1  Ohio  Rep.  115.  Ohio  Conds.bQ.  The  rule, 
it  seems,  is  the  same  wliether  the  note  contain  the  words,  "for  value  receiv- 
ed," ornot.  The  doctrine  of  nudum  pactum,  seems  very  justly  to  be  con- 
sidered as  inapplicable  to  instruments  of  this  kind. — lb. 


ASSUMPSIT.  33 

07ie  hundred  dollars,  so  by  him  paid  for  the  same.  And  the  said 
A.  B.  avers,  that  though  he  then  and  there  received  the  said  horse 
on  the  teims  aforesaid,  in  faith  of  the  said  promise  of  the  said  C. 
D.  and  though  the  said  horse  afterwards  proved  to  have  been  un- 
sound, 171  the  eyes,  at  the  time  of  the  sale  and  delivery  aforesaid, 
and  so  remained,  of  which  the  said  C.  D.  on  —  at  —  had  notice  : 
yet  the  said  C.  D.  disregarding  his  promise  aforesaid,  although  re- 
quested on  —  at  —  hath  not  as  yet  taken  back  the  said  horse,  nor 
repaid  to  the  said  A.  B.  the  said  one  hundred  dollars. 

Second  Cowit.  —  And  also  for  that  the  said  C.  D.  on  —  at  —  in 
consideration  that  the  said  A.  B.  had  then  and  there,  at  the  request 
of  the  said  C.  D.  bought  a  certain  other  horse  of  the  said  C.  D.  for 
the  sum  of  one  hundred  dollars,  then  and  there  paid  to  the  said 
C.  D.  he  the  said  C.  D.  then  and  there  promised  the  said  A.  B.  that 
the  said  last  mentioned  horse  was  sound:  yet,  the  said  C.  D.  disre- 
garding his  promise,  deceived  the  said  A.  B.  in  this,  that  the  said 
last  mentioned  horse,  at  the  time  of  making  said  promise,  and  said 
sale,  was  not  sound,  but  was  then  and  there  unsound,  whereby  the 
said  last  mentioned  horse  became  of  no  value  to  the  said  A.  B.  of 
all  which  the  said  C.  D.  on  —  at  —  had  notice,  &c.  [Conclude  as 
in  No,  1. 


No.  22.     On  the  sale  of  a  horse  with  loarranty. 

[Proceed  as  in  No.  1.  tu  the  *  the 

said  C.  D.  on at in  consideration  that  the  said  A.  B.  at  the 

request  of  the  said  C.  D.  would  buy  of  him  a  certain  horse  for  the 
sum  of  one  hundred  dollars,  he  the  said  C.  D.  then  and  there  pro- 
mised the  said  A.  B.  that  the  said  horse  was  then  and  there  sound  : 
and  the  said  A.  B.  avers,  that  he,  confiding  in  the  said  promise  of 

the  said  C.  D.  did  afterwards,  on at aforesaid,  buy  the  said 

horse  of  the  said  C.  D.  and  then  and  there  paid  him  for  the  same 
the  said  sum  of  one  hundred  dollars  :  yet  the  said  C.  D.  disregard- 
ing his  said  promise,  thereby  deceived  and  defrauded  the  said  A. 
B.  in  this,  that  the  said  horse,  at  the  time  of  the  making  the  said 
promise  of  the  said  C.  D.  was  not  sound,  but  on  the  contrary-,  was 
then  and  there  unsound,  whereby  the  said  horse  became  and  was  of 

E 


34  ASSUMPSIT. 

no  use  or  value  to  the  said  A.  B.  and  he  the  said  A.  B.  hath  heen 
put  to  great  charges  and  expense  of  his  time  and  money  in  and 
about  the  feeding,  keeping,  and  taking  care  of  said  horse,  in  the 

whole  amounting  to  a  large  sum  of  money,  to  wit, dollars,  &c. 

\^Adda  courdfor  horse  keeping,  post  No.  26.  and  the  common  mo- 
neij  count.  A7ite,  No.  15.] 


No.  23.     For  not  delivering  mai^e,  <^c.  in- 
exchange  for  cows.    2  Went.  221. 

[^Proceed  as  in  No.  1.  to  the  *  - —  on 

at the  said  A.  B.  was  lawfully  possessed  of  divers,  to  wit,  ten 

cows,  and  the  said  C.  D.  was  then  and  there  possessed  of  a  certain 
heifer  and  a  certain  mare,  and  being  so  possessed,  in  consideration 
that  the  said  A.  B.  at  the  request  of  the  said  C.  D.  had  then  and 
there  agreed  with  the  said  C.  D.  to  exchange  the  said  cows  for  the 
said  heifer  and  mare,  and  a  certain  sum  of  money,  to  wit, dol- 
lars, to  be  paid  by  the  said  C.  D.  to  the  said  A.  B.  the  said  C.  D. 
then  and  there  promised  the  said  A.  B.  to  deliver  him  the  said  hei- 
fer and  mare,  and  also  to  pay  him  the  said  sum  of dollars,  by 

way  of  exchange  for  the  said  cows  :  and  the  said  A.  B.  avers  that 
there  afterwards  on  the  same  day,  and  in  exchange  for  the  said 
mare  and  heifer  and  sum  of  - —  dollars,  he  did  deliver  to  the  said 
C.  D.  the  said  cows,  which  the  said  C.  D.  then  and  there  received  : 
and  the  said  A.  B.  further  avers,  that  though  the  said  C.  D.  hath 
delivered  liis  said  heifer  to  the  said  A.  B.  in  part  of  said  exchange, 
yet  the  said  C.  D.  hath  not  yet  delivered  to  the  said  A.  B.  the  said 

mare,  nor  hath  he  ever  paid  the  said  sum  of dollars,  &c.   \^Add 

counts  for  goods  sold  and  delivered,  money  had  and  received,  ^c. 
Ante.  No.  15.] 


Quantum  jieruit  counts. 

No.  24.     For  rent. 

[Proceed  as  in  No.  1 .  to  the  *  — -  the 

said  C,  D.  on at in  consideration  that  the  said  A.  B.  at  the 

request  of  the  said  C.  D.  had  permitted  him  quietly  to  hold  and 


ASSUMPSIT.  35 

occupy  a  certain  house,  &c.  from to which  the  said  C.  D. 

did  hold  and  occupy  accordingly,  he  the  said  C.  D.  promised  the 
said  A.  B.  to  pay  him  on  demand,  so  much  money  as  he  reasonably 
deserved  to  have  therefor ;  and  the  said  A.  B.  avers  that  he  rea- 
sonably deserved  to  have  therefor  the  sum  of dollars  :  yet  the 

said  C.  D.  hath  disregarded  his  promise,  and  though  often  request-- 
ed,  hath  not  paid  the  said  sum  of  money,  or  any  part  thereof:  to 
the  damage,  &c.  [Conclude  as  in  No.  1.] 


No.  25.     For  use  and  occupation. 

[Proceed  as  in  No.   1 .  to  the  *  the 

said  C.  D.  on at in  consideration  that  the  said  A.  B.  at  the 

request  of  said  C.  D.  liad  suffered  and  permitted  the  said  C.  D.  to 
use,  occupy  and  enjoy  a  certain  dwelling  house,  building  and  lands, 

with  the  appurtenances,  situate  at and  which  the  said  C.  D, 

had  accordingly  used,  occupied  and  enjoyed,  for  a  long  space  of 
time  then  elapsed,  he  the  said  C.  D.  promised  the  said  A.  B.  to  pay 
him  on  demand,  so  much  money  as  he  reasonably  deserved  to  have 
therefor  ;  and  the  said  A.  B.  avers  that  he  reasonably  deserved  to 
have,  &c.  [Conclude  as  in  No.  24.] 


No.  20.     For  horse  feed,  slahlin^,  (^r. 

[Proceed  as  in  No.    1.  to  the   *  the 

said  C.  D.  on at in  consideration  that  the  said  A.  B.  at  the 

request  of  the  said  C.  D.  had,  before  that  time,  found,  provided 
and  supplied,  horscfccd,  stabling  and  attendance,  for  divers  horses, 
mares  and  g(>ldings  of  the  said  C.  D.  he  the  said  C.  D.  promised 
to  pay  him,  on  demand,  so  much  money  as  he  reasonably  deserved 
to  have  therefor;  and  the  said  A.  B.  avers  that  he  reasonably  de- 
serves to  have,  &c.  [Conclude  as  in  No.  24.] 


No.  27.     For  the  hire  of  horses,  <Jr. 

[Proceed  as  in  No.   1.  to  the   * the 

saidC.  D.  on at in  considei'ation  that  the  said  A.  B.  at 


30  ASSUMPSIT. 

the  request  of  the  said  C.  D.  had  before  that  time  let  to  hire  to  the 

said  C.  D.  divers  to  wit horses  of  the  said  A.  B.  and  that  the 

said  C.  t).  according  to  said  letting  to  hire,  had  and  used  the  same, 
ho  the  said  C.  D.  promised  the  said  A.  B.  to  pay  him  so  much  mo- 
ney as  he  reasonably  deserved  to  have  therefor ;  and  the  said  A.  B. 
avers  that  he  reasonably  deserves  to  have,  &c.  [Conclude  as  in 
No.  24.] 

No.  28.     Bij  Physicians  for  Medicines,  <^c. 

[Proceed  as  in  No.  1.  to  the  *  the 

said  C.  D.  on at in  consideration  that  the  said  A.  B.  be- 
fore that  time,  at  the  request  of  the  said  C.  D.  had  done,  performed 
and  bestowed  certain  work,  labour,  diligence  and  care,  in  and  about 
the  healing  and  curing  of  the  said  C.  D.  and  divers  persons  belong- 
ing to  his  family,  of  divers  diseases  and  maladies,  and  had  found  and 
provided  divers  medicines  and  potions  for  the  said  C.  D.  and  divers 
of  his  family,  at  the  like  request,  he  the  said  C.  D.  promised  the 
said  A.  B.  to  pay  him  so  much  money  as  he  reasonably  deserved 
to  have  therefor ;  and  the  said  A.  B.  avers  that  he  reasonably  de- 
served to  have,  &c.  [Conclude  as  in  No.  24.] 

No.  29.     By  Attorney,  for  his  fees,  6fC. 

[Proceed  as  in  No,   1 .  to  the   *  the 

said  C.  D.  on at in  consideration  that  the  said  A.  B.  as 

the  Attorney  and  Solicitor,  and  at  the  request  of  the  said  C.  D. 
and  on  his  retainer,  had  before  that  time  done  and  performed 
certain  work  and  labor  in  and  about  prosecuting  and  defending  di- 
vers suits  at  Law  and  in  Equity,  in  divers  Courts  in  this  State,  and 
in  giving  liis  attendance  in  and  about  the  business  of  the  said  C.  D. 
he  the  said  C.  D.  promised  the  said  A.  B.  to  pay  liim  so  much  mo- 
ney as  he  reasonably  deserved  to  have  therefor  ;  and  the  said  A. 
B.  avers  that  he  reasonably  deserves  to  have,  &c.  [Conclude  as 
in  No.  24.] 

The  declaration  is  to  be  filed  with  the  Clerk  of  the  proper  Court; 
and  the  defendant  must  plead  or  demur  within  the  time  limited  by 
the  rules  of  Court,  or  judgment  will  pass  against  him  by  default. 
Each  party  is  bound  to  take  notice  of  the  filing  of  the  pleadings  of 
his  adversary  without  service  of  a  copy  or  notice.  Stat.  Vol.  29. 
jj.  73.  §  79. 


ASSUMPSIT.  37 


Of  Defence. 


The  ancient  niceties  as  to  whole  and  half  defence,  are  now  but 
little  regarded  in  England ;  and  would  probably  be  still  less  regard- 
ed by  our  Courts.  Whether  the  common  law  doctrines  of  De  fence, 
in  general,  would  be  recognized  by  by  our  Courts,  is  perhaps 
doubtful.  It  seems  to  be  a  general  rule,  that  though  the  defendant 
appear  and  plead  a  sufficient  Bar  ;  yet,  without  making  a  Defence, 
Judgment  shall  be  given  against  him.  Co.  Litf  127.  6.  Bac. 
Abg.  Tit.  Pleas  and  Plead.  D.  This  rule  is  wholly  disregarded 
in  our  Practice,  and  it  is  probable  that  the  whole  doctrine  of  De- 
fence, as  connected  with  pleas  in  bar,  would  be  considered  inappli- 
cable to  our  condition.  All  the  defence  made  in  our  practice,  is 
found  in  the  commencement  of  the  plea  in  bar,  thus  ;  "And  the 
said  C.  D.  comes  and  defends,  &c."  A  greater  degree  of  nicety 
seems  to  be  necessary  in  pleas  in  Abatement.  Story  PI.  1.  2.  3. 
5  Danes  Abg.  €y8l.  The  Court  however  in  such  pleas,  hold  the 
"  when,  ^-c."  to  be  half  or  full  defence,  as  occasion  may  require. 
8  T.  R.  631. 


38  ASSUMPSIT. 


Pleas  in  Abatement. 

No  plea  ia  Abatement  is  allowed,  without  affidavit  of  the  truth 
thereof,  except  a  plea  to  the  Jurisdiction  of  the  Court,  or  when 
the  truth  of  the  plea  appears  of  record.  Stat.  Vol.  29.  p.  Gil. 
§  49. 

No.  1.      Want  of  Parties,  Plaintiffs. 

C.  D.    ^ 

ads.      >    Common  Pleas,  or.  Sup.  Court. 

A.  B.    ) 

And  the  sai  d  C.  D.  comes  and  defends,  «Sz;c. 
When,  &c.  and  prays  judgment  of  the  writ  and  declaration  afore- 
said, because  he  says  that  the  said  promises  in  said  declaration 
mentioned,  if  any  such  were  made,  were,  and  each  and  every  of 
them  was  made  by  the  said  C.  D.  to  the  said  A.  B.  and  one  E.  F. 
jointly,  and  not  to  the  said  A.  B.  separately  without  the  said  E.  F., 
and  that  the  said  E.  F.  at  the  time  of  the  suing  out  and  service  of 
said  writ,  was  and  still  is  living,  to  wit,  at  —  i&c.  and  this  the  said 
C,  D.  is  ready  to  verify :  wherefore  inasmuch  as  the  said  E.  F.  is 
not  named  in  said  writ  and  declaration,  the  said  C.  D.  prays  judg- 
ment, and  that  the  said  writ  and  declaration  may  be  quashed  ;  and 
also  for  his  costs. 

By  F.  his  Atty. 

Affidavit  to  plea  in  Abatement. 

C.  D.  the  above  named  defendant,  makes  oath  and  says  that  the 
above  plea  by  him  pleaded  is  true  in  substance  and  matter  of  fact. 
Sworn,  &c.  C.  D. 

No.  2.     No  such  person,  in  esse. 

\_Commence  as  in  No.   1.  because  he 

says  that  there  is  not,  nor  on  the  day  of  the  suing  out  and  service 


ASSUMPSIT.  29 

of  said  writ,  was  tliere  in  being,  uny  sucli  person  called  A.  B.  of — 
&LC.  as  by  the  said  writ  is  above  supposed,  and  this  he  is  ready  to 
verify  :whcrefore,  he  prays  judgment,  &c.  [Conclude,  and  add  Af- 
fidavit, as  in  No.  1.] 


No.  3.     V/ant  of  parties,  defendants. 

[Commence  as  in  No.   1. ])ecause  he 

says,  that  the  said  several  promises  in  said  declaration  mentioned, 
if  any  such  were  made,  were  made  by  one  E.  F.  and  one  G.  H. 
jointly,  with  the  said  C.  D.  and  not  by  the  said  C.  D.  alone,  and 
which  said  E.  F.  and  G.  H.  are  and  each  of  them  is  still  living,  to 
wit,  at  —  &c.  and  this  he  is  ready  to  verify  :  wherefore,  because 
the  said  E.  F.  and  G.  H.  are  not,  nor  is  either  of  them  named  in 
said  writ  and  declaration,  the  said  C.  D.  prays  judgment  of  the  said 
writ  and  declaration,  and  that  the  same  may  be  quashed,  &c.  [Add 
Affidavit  as  in  No.  1.] 

Replication. — And  the  said  A.  B.  says,  that  by  any  thing  in  said 
plea  of  said  C.  D.  alleged,  his  said  writ  and  declaration  ought  not 
to  be  quashed,  because  he  says  that  the  said  several  promises  in 
said  declaration  mentioned,  were  and  each  and  every  of  them  was 
made  by  the  said  C.  D.  alone,  in  manner  and  form  as  the  said  A. 
B.  hath  above  declared  against  him,  and  this  he  prays  may  be  en- 
quired of  by  the  country,   {a) 


(a)  The  JudgmRnt,  upon  a  verdict  for  tlie  Plainlijf,  upon  an  isene  joined 
in  a  pleaof  abatement,  is  final,  r/iiod  recuperet,  and  tiie  .Iiiry  should  assess 
the  damages.  2  IFIls.  •Vol ,  Tidd.  Pr.  979.  Hut  a  judgment  tur  him  on 
demurrer  is  not  final,  but  a  rcspondcas  ouster.     1  c/i-.  ll'J.     Tidd.  Pr.  979. 

Our  Statute,  F^ol.  29.  j).  OS.  ^  "?0.  has  materially  changed  the  common 
law  doctrines  in  regard  to  pleas  in  Abatement  for  non-j(>ind>ir  of  Partaera. 
It  provides  that  wlien  one  or  more  of  the  partners  are  sued,  and  a  plea  in 
abatement  is  filed  alleging  the  non-joinder  of  other  partners,  the  suit  I'nr  that 
cause  shall  not  abate,  but  the  i)laiuti!r  may  forthwitii  sue  out  a  summons, 
(Ske  Special  ff'rils.  No.  10,)  again^et  the  other  partners,  named  in  the  plea, 
and  proceed  in  all  other  respects  thereafter  as  if  such  otlier  partners  had 
been  included  in  the  original  suit,  and  no  other  plea  in  abatement  for  non- 
joinder shall  be  allowed.  (^uen  ,  can  tiie  summons  issue  after  a  verdict 
against  the  Plainti/f  on  the  plea  in  abatement.  It  would  seem  that  it  may, 
otherwise  the  plea  must  be  taken  as  absolutely  true,  without  atrial  ;  and 
the  Plaintiff  might  thus  be  comi)elled  to  bring  persons  into  Court  who  were 
in  no  respect  interested  in  the  cause. 


40  ASSUMPSIT. 


No.  4.     Another  action  pending. 

[Com7nence  as  in  No.  1.  And  the  said 

C.  D.  comes  and  defends,  &lc.  when,  &c.  and  says  that  he  ouglit 
not  to  be  compelled  to  answer  to  tlie  said  writ  and  declaration  of 
the  said  A.  B.  because  he  says,  that  the  said  A.  B.  heretofore,  to  wit, 

at  a  Court  of held  at, within  and  for  the  county  of on  — 

impleaded  the  said  C.  D.  in  a  plea  of  Assumpsit,  and  for  the  same 
cause  of  action  in  the  declaration  aforesaid  mentioned,  as  by  the 
record  thereof  in  the  same  Court  remaining,  appears  ;  and  that  the 
parties  aforesaid  to  and  in  the  plea  aforesaid,  in  the  said  Court  of 

and  the  said  A.  B.  the  now  plaintiff  here,  and  the  said  C.  D. 

the  now  defendant  here,  are  the  sam.e  persons,  and  not  other  or  dif. 
ferent ;  and  that  the  plea  aforesaid  in  said  Court  of yet  re- 
mains undetermined  ;  wherefore  he  prays  judgment  if  he  ought  to 
be  compelled  to  answer  to  the  writ  and  declaration  aforesaid,  and 
for  his  costs,  &c. 


Replication.     Nul  tiel  record. 

And  the  said  A.  B.  says,  that,  notwithstanding  any 
thing  by  the  said  C.  D.  above  alleged,  the  said  C  D.  ought  to  be 
compelled  to  answer  the  writ  and  declaration  aforesaid,  because 
he  says,  that  there  is  not  any  such  record  of  the  plea  aforesaid  had 
in  the  said  Court  of existing,  as  the  saidC.  D.  hath  above  al- 
leged ;  and  this  he  is  ready  to  verify  ;  wherefore  he  prays  judg- 
ment, and  that  the  said'  C.  D.  may  answer  («)  to  his  said  writ  and 
declaration,  &c. 


(a)  It  has  bcenlielJ  that  the  Plaintiffmay  pray  judgment  in  chief,  de  debi- 
to  et  damnis,  because,  if  tried,  peremptory  judgment  ought  to  be  given. 
1  Ld.  Rayin.  338.  594.  2.  Id.  1022. 

The  commencement  of  another  suit,  for  the  same  cause  of  action,  in  the 
Court  of  another  State,  since  the  last  continuance,  cannot  be  pleaded  in 
abatement  of  the  original  suit;  and  if  the  matter  in  abatement  be  pleaded, 
puis  darrein  continuance,  the  judgment,  if  against  the  defendant,  is  peremp- 
tory. A  siibsequcnl  suit  may  be  abated  by  an  allegation  of  the  pendency  of 
a  p7-ior  suit,  but  the  converse  does  not  hold  in  personal  actions.  1  Wheat. 
215. 


ASSUMPSIT.  41 


Pleas  in  Bar. 


Pleas  in  Bar  are,  in  general,  governed  by  the  same  rules  in  Ohio, 
as  in  England.  The  Stat.  4  Anne,  c.  16.  §  4.  5.  which  permits  se- 
veral matters  to  be  pleaded  in  Bar,  has  also  been  substantially- 
adopted.  Stat.  Vol.  29.  p.  67.  §  48.  The  practice  under  the  two 
Statutes,  however,  is  difierent.  In  England  a  rule  is  applied  for, 
to  the  Court,  for  leave  to  file  several  pleas  ;  but  in  Ohio,  the  pleas 
are  filed,  as  of  course.  In  England,  if  the  rule  be  improperly  used, 
the  Court,  on  the  application  of  the  Plaintiff,  will  rescind  it.  15 
Com.  Law.  Rep.  360.  Our  Courts  afford  similar  relief  on  motion 
to  strike  the  pleas  from  the  record. 

The  defendant  in  any  action,  may  plead  the  general  issue,  and 
give  any  special  matter  in  evidence,  which,  if  pleaded,  would  be  a 
bar  to  such  action,  giving  notice,  witli  the  plea,  to  tlie  PlaintiflT,  of 
such  matter      Stat.  Vol  29.  p.  67.  §  48. 

Each  party  is  bound  to  take  notice  of  the  filing  of  the  pleadings 
of  his  adversary,  without  service  of  a  copy  or  notice.  Stat.  Vol 
29.  p.  73.  §  79. 


No.   1 .     General  issue,  and  notice  of  set-ojf. 

C.D.\ 

ads.       >    Com.  Pleas,  or.  Sup.  Court. 

A.  B.     ) 

And  the  said  C.  D.  comes  and  defends,  &c.  and  says  that  he  did 
not  assume  and  promise,  [if  a7i  administrator,  say,  ''the  said  E.  F." 
the  intestate,  ^^did  not  assume  and  promise  ^-c."]  in  manner  and 
form  as  the  said  A.  B.  hath  declared  against  him  ;  and  of  this 
he  puts  himself  upon  the  country  ;  and  the  said  A.  B.  doth  the 
like,  (a) 

By     S.  his  Atty. 

(a)  The  common  similiter,  wliicli  may  be  added  by  eitlier  parly,  is  fre- 
quently omitted,  and  it  may  perhaps  be  questionable  wiictlier  tbe  want  of 
itcould  be  taken  advantajfu  of  even  on  j^'tciVj/ demurrer.  It  however  makes 
a  more  perfect  record,  and  is  therefore  proper  to  be  added.     Tlic  IMaintifl", 

F 


42  ASSUMPSIT. 

The  plaintiff  will  also  take  notice,  that  the  defendant,  on  the  trial 
of  this  cause  will  give  in  evidence  and  insist  that  the  plaintiff,  a1 
the  commencement  of  this  suit,  was  and  still  is  indebted  to  the  de- 
fendant in  the  sum  of dollars  for  the  price  and  value  of  goods 

before  that  time  bargained  and  sold  by  the  defendant  to  the  plain- 
tiff at  his  request ;  and  also  in  the  sum  of dollars,  for  the  price 

and  value  of  goods  before  that  time  sold  and  delivered  by  the  de- 
fendant to  the  plaintiff  at  his  request ;  and  also  in  the  sum  of 

dollars  for  the  price  and  value  of  work  before  that  time  done,  and 
materials  for  the  same,  provided  by  the  defendant  for  the  plaintiff 
at  his  request ;  and  also  in  the  sum  of dollars  for  money  be- 
fore that  time  lent  by  the  defendant  to  the  plaintiff  at  his  request ; 

and  also  in  the  sum  of dollars  for  money  before  that  time 

received  by  the  plaintiff  for  the  use  of  the  defendant ;  and  also  in 
the  sum  of dollars  for  money  found  to  be  due  from  the  plain- 
tiff to  the  defendant  on  an  account  before  that  time  stated  between 
them  ;  and  that  the  defendant  will  set  off  on  said  trial,  so  much  of 
the  said  several  sums  of  money  so  due  and  owing  from  the  said 
plaintiff  to  the  said  defendant,  against  any  demand  of  the  said  plain- 
tiff to  be  proved  on  the  said  trial,  as  will  be  sufficient  to  satisfy  and 
discharge  such  demand  ;  and  will  also  then  and  there  demand  a 
judgment  against  the  said  plaintiff  for  the  balance  of  said  several 
sums  of  money  due  to  the  said  defendant,  according  to  the  statute 
in  such  case  made  and  provided,  (a) 


under  this  plea,  will  not  be  bound  to  prove  the  execution  of  a  note,  bill,  &c. 
declared  upon,  unless  the  defendant  tiles  witii  his  plea  an  affidavit  of  the 
truth  thereof.     Stat.  Vol.  29.  p.  122.  \  1. 

The  form  of  such  affidavit  may  be  thus  : 

The  above  named  C.  D.  makes  oath,  and  says,  that  the  foregoing  plea  of 
the  general  issue,  is  true  in  substance  and  matter  of  fact. 
Sworn  to,  &c. 

(a)  It  is  alwaj's  advisable  to  add  this  general  notice  of  set-off  lo  a  no- 
tice of  special  matter,  as  a  promissory  note,  bill,  bond,  judgment,  S,-c.  for 
the  same  reason  that  the  common  counts  are  annexed  to  special  counts  in 
the  declaration.  A  general  notice  may  often  save  a  verdict  where  the  evi- 
dence varies  from  the  special  notice. 

A  notice  of  special  matter,  though  not  required  to  be  in  the  strict  techni- 
cal form  of  a  special  plea,  must  contain  all  the  facts  necessary  to  sustain  a 
special  plea.  The  true  way  to  test  the  sufficiency  of  a  notice,  is  to  enquire 
whether  the  matters  contained  in  it,  would  be  good  on  general  demurrer. 
13  Johns.  475.     5  Ohio.  Rep.   169.  346. 


ASSUMPSIT.  43 

No.  -2.     Non  (Assumpsit,  infra  sex  annos. 

CD.    ) 
ads.      >    Com.  Pleas,  or,  Sup.  Court. 


A.  B.    ^ 

And  the  said  C.  D.  comes  and  defends,  &c.  (a)  and  for  plea  to 
the  declaration  aforesaid,  or,  to  the  first  count  of  the  declaration 
aforesaid,  says,  that  the  said  A.  B.  ought  not  to  have  his  aforesaid 
action  thereof  against  him,  because  he  says,  that  the  cause  of  action 
in  the  said  declaration,  ox,  first  count,  ^-c.  mentioned,  cUd  not  at  any 
time  within  six  years  next  before  the  commencement  of  said  action, 
accrue  to  the  said  A.  B.  and  this  he  is  ready  to  verify  ;  wherefore 
he  prays  judgment,  if  the  said  A.  B.  his  action  aforesaid  thereof 
against  him  ought  to  have  or  maintain. 


(a)  If  the  general  issue  be  first  plead,  the  second  and  all  subsequent 
pleas  may  commence  thus  :  "  And  the  said  C.  D.  for  tifurlher  plea  to  the 
declHration  aforesaid,  says,  &c." — Notwithstanding  the  Statute  authorizes 
double  pleading,  in  general,  still  there  are  certain  pleas  so  inconsistent  with 
each  other,  tliat  Courts  of  Justice  will  not  permit  them  to  be  joined. 

1.     Picas  ivhich  may  he  joined. 

1.  Non-assumpsit  and  the  statute  of  limitation.     Str,  678.  889. 

2.  Non-assumi)sit  and  discharge  by  bankruptcy.  Str.  1000. 

;}.   Non-assumpsit,  set-off,  and  statute  ot  limitations.   Barnes.  286. 

4.  Non-assumpsit  and  judgment  recovered.  Fortesc.  '3:57. 

5.  Non-assumpsit  and  ue  unques  executor.    Fortesc.  IJ36. 
(5.  Non-assumpsit  and  pZe?ie  udniinistravit.   Bunb..l82. 

7.  Non-assumpsit  by  testator — no  cause  of  action  witliin  six  years — non- 
assumpsit  by  administrator,  and  plenc  admiuislracil.  Com.  Dig.  PI.  E-  2. 
Ilardio.  2AX 

8.  JVe  unques  executor,  and  plcne  adminislravit. 

9.  Plune  admimstravit  and  set-otl". 

1(1.   Payment  'd.n<\  plcne  adminislravit .   Hardw.   178. 

2.   Picas  loiiich  may  not  Le  joined. 

1.  Non-assump.sit  and  tender.   Str.  490.     3   fFils.  145. 
'J.   .\on-assumpsit  and  alien  enemy.     2  Bos.  lV  Put.  12. 
."}.   Non-assumpsit  and  Infancy.     Jldvues.  ou-i. 
4.   Non-assuiiip.s  t  and  solvit  ad  diem. 

T).  Non-aasunii).sit  to  tiio  whole  and  Icniirr  to  a  part.     4   T  li.  194. 
().   Non-assumpsit  to   pail  and  tender  to  llio  rctiiduc.     Cli/t.  202.  Stonj. 
PL  by  Ol.   Id-!. 


44  ASSUMPSIT. 


Replication.     That  the  plaintiff  ivas  out  of  the  i^tate,and 
sued  icithin  six  years  after  his  return. 

And  the  said  A.  B.  as  to  the  plea  of  the  said  CD. 
secondhj,  pleaded  in  bar,  says,  that  he  ought  not  to  be  barred 
of  his  action  aforesaid,  because  he  says,  that  he,  the  said  A.  B.  at 
tlie  time  when  the  cause  of  action  in  his  said  declaration  mention- 
ed accrued,  was  in  foreign  parts,  out  of  the  State  of  Ohio,  to  wit, 

at &c.  and  there  resided  until  he  afterwards,  to  wit,  on 

returned  to  the  State  of  Ohio,  and  that  he  the  said  A.  B.  within 
six  years  after  liis  said  return  into  the  State  of  Ohio,  to  wit,  on 

commenced  his  action  against  the  said  C  D.  in  due  manner 

and  form  aforesaid ;  and  this  he  is  ready  to  verify  :  wherefore  he 
prays  judgment,  and  his  damages  and  costs  to  be  adjudged  to  him. 

Rejoinder.  And  the  said  C.  D.  says  that  the  said  A.  B.  did 
not  within  six  years  after  his  said  return  into  the  State  of  Ohio, 
commence  his  action  aforesaid,  against  liim  the  said  C.  D.  in  man- 
ner and  form  as  the  said  A.  B.  hath  in  his  said  replication  alleged, 
and  of  this  he  puts  liimself  upon  the  country. 


No.   3.      Tender. 

And  for  n.  further  plea  as  to  fifty  dollars,  residue  of  the  said  one 
thousand  dollars,  in  the  said  declaration  mentioned,  the  said  C.  D. 
says,  that  the  said  A.  B.  ought  not  to  recover  his  damages  by  rea- 
son of  the  non-payment  of  said  fifty  dollars,  because  he  says,  that 
he  the  said  C.  D.  after  the  making  of  the  said  promise  in  the  said 
declaration  mentioned,  and  before  the  commencement  of  this  ac- 
tion, to  wit,  on at tendered  the  said  sum  of  fifty  dollars 

to  the  said  A.  B.  who  then  and  there  refused  to  receive  the  same  ; 
and  the  said  C.  D.  further  says,  that  he,  from  the  time  of  making 
of  the  said  promise,  in  said  declaration  mentioned,  as  to  the  said 
fifty  dollars,  hitherto  always  has  been,  and  still  is  ready  to  pay  to 
the  said  A.  B.  the  said  sum  o^  fifty  dollars,  and  now  brings  the 
same  into  Court  here  ready  to  pay  to  the  said  A.  B.  if  he  will  ac- 
cept the  same  ;  and  this  he  is  ready  to  verify  :  wherefore  he  prays 


ASSUMPSIT.  45 

judgment,  if  the  said  A.  B.  ought  to  liave  liis  action  aforesaid 
against  him  to  recover  any  damages,  by  reason  of  the  non-pay- 
ment of  the  said  sum  of  ffti/  dollars  in  this  behalf. 


Replication.  I.     No  tender  made. 

And  the  said  A.  B.  as  to  the  plea  of  the  said  C.  D 
secondly  above  pleaded,  as  to  the  said  fifty  dollars,  residue  of  the 
said  one  thousand  dollars,  in  the  said  declaration  mentioned,  says, 
that  he  by  any  thing  alleged  therein,  ought  not  to  be  barred  from 
his  action  aforesaid,  to  recover  his  full  damages  in  that  behalf,  be- 
cause he  says,  that  the  said  C.  D.  did  not  offer  to  pay  him  the  said 
sum  o(  ffty  dollars,  in  manner  and  lorm  as  the  said  C.  D.  hath 
above  alleged,  and  this  he  prays  may  be  enquired  of  by  the  country. 

Replication.  II.     Subsequent  request  and  refusal. 

[Precludi  non,  as  in  the  last  precedent] because 

he  says,  that  after  the  making  said  tender,  in  said  plea  mentioned, 

and  before  the  commencement  of  this  action,  to  wit,  on at 

he  the  said  A.  B.  requested  the  said  C.  D.  to  pay  him  the  said  ffty 
dollars,  which  the  said  C.  D.  then  and  there  refused  :  wherefore  he 
prays  judgment,  and  that  his  damages  by  reason  of  the  non-pay- 
ment of  said  ffty  dollars  maybe  adjudged  to  him. 

No.  4.     Satisfaction. 

And  the  said  C.  D.  comes  and  defends,  &c,  and  says,  that  the  said 
A.  B.  ought  not  to  have  his  aforesaid  action  against  him,  because  he 
says,  that  he,  after  the  making  of  the  said  several  promises  in  said 
declaration  mentioned,  and  before  the  commencement  of  tliis  action, 

to  wit,  on at gave  and  delivered  to  the  said  A.  B.  two 

pieces  of  broad-cloth,  in  full  satisfaction  and  discharge  of  the  se- 
veral promises  aforesaid,  and  of  the  damage  sustained  by  the  said 
A.  B.  by  reason  of  the  non-performance  thereof,  which  the  said 
A.  B.  then  and  there  received  and  accepted  in  full  discharge  and 
satisfaction  of  the  said  several  promises,  and  of  the  damages  sus- 
tained by  the  said  A.  B.  by  reason  of  the  non-performance  thereof; 
and  this  he  is  ready  to  verify  :  wherefore  he  prays  judgment,  and 
that  the  said  A.  B.  mav  be  barred  of  his  action  aforesaid. 


46  ASSUMPSIT. 


Replication.     Did  not  accept. 

And  the  said  A.  B.  says,  tliat  lie,  by  reason  oi' 
any  thing  by  the  said  C.  D.  in  his  plea  alleged,  ought  not  to  be 
barred  from  having  his  aforesaid  action  against  the  said  C.  D.  be- 
cause he  says,  that  he  did  not  accept  or  receive  the  said  two  pieces 
of  broad-cloth,  in  full  satisfaction  and  discharge  of  the  said  several 
promises,  or  any  or  either  of  them,  or  of  the  damages  sustained  by 
liim  by  reason  of  the  non -performance  thereof,  in  manner  and 
form  as  the  said  C.  D.  hath  alleged ;  and  this  he  prays  may  be 
enquired  of  by  the  country. 


No.  5.     Infancy. 

And  the  said  C.  D.  [who  is  under  the  age  of  twenty-one  years,  by 
E.  F.  his  guardian,  who  is  admitted  by  the  Court  here  to  defend 
for  the  said  C.  D.  (a)  ]  comes  and  defends,  &c.  and  says  that  the 
said  A.  B.  ought  not  to  have  his  action  aforesaid  against  him,  be- 
cause he  says,  that  at  the  several  times  of  the  making  the  said  seve- 
ral promises  in  the  said  declaration  mentioned,  he  the  said  C.  D. 
was  an  infant,  within  the  age  of  twenty-one  years,  to  wit,  of  the 
age  of  seventeen  years,  and  no  more  ;  and  tliis  he  is  ready  to  veri- 
fy :  wherefore  he  prays  judgment  if  the  said  A.  B.  ought  to  have 
or  maintain  his  action  aforesaid  against  him. 

Replication.     Necessaries. 

And  the  said  A.  B.  says  that  he,  by  reason  of  any 
thing  in  the  plea  of  the  said  C.  D.  alleged,  ought  not  to  be  barred 
from  his  action  aforesaid,  because  he  says,  that  the  goods,  wares 
and  merchandize,  labour  and  work,  materials  and  necessary  things 
in  said  declaration  mentioned,  were  necessaries  for  the  said  C.  D. 
and  suitable  to  his  degree  and  estate,  and  that  the  said  money  in  the 
said  declaration  mentioned  was  paid  by  the  said  A.  B.  for  things 
necessary  for  the  said  C.  D,  and  suitable  to  his  degree  and  estate  > 


(a)  This  statement  i&  omitted,  if  the  defondant  be  of  age  at  the  time  the 
action  is  brought. 


ASSUMPSIT.  47 

and  this  he  is  ready  to  verify :  whereupon  lie  prays  judgment,  and 
his  damages,  &;c.  to  be  adjudged  to  him. 


No.  0.     Plea,  puis  darrein  continuance. 

And  now  at  this  day,  to  wit,  the day  of in  the  term 

of A.  D. to  which  term  this  cause  was  continued  on  the 

day  of term  last  past,  comes  the  said  C.  D.  and  says, 

that  the  said  A.  B.  ouglit  not  further  to  maintain  this  action  against 
him,  because  he  says  that  since  the  last  continuance  thereof  as 

aforesaid,  and  before  this  day,  to  wit,  on  at [Here  state 

the  subject  matter  of  the  plea,  as  a  release,  award,  revocation  of  let- 
ters of  administration,  Sfcl ;  and  this  he  is  ready  to  verify :  where- 
fore he  prays  judgment,  if  the  said  A.  B.  ought  to  further  main- 
tain his  aforesaid  action  against  liim. 

Affidavit,  {a) 

The  above  named  C.  D.  makes  oath  and  says,  that  the  above  plea 
is  true  in  substance  and  matter  of  fact. 
Sworn,  &;c. 


(a)  An  affido.vit  is  rot  necessary  in  all  cases.  9  Johns.  250.  It  seems 
to  be  allov/able,  without  affidavit,  at  discretion,  "if  the  Justices  perceive 
any  verity  therein."  Cro.  Car.  261.  See,  1  Str.  492.  2  Wils.  137.  2 
Peters.  543.  A  plea  puis  darrein  continuance,  is  a  waiver  of  all  prior 
pleas.     2  Peters.  543. 


48  ASSUMPSI'J\ 


Demurrers. 


No.   1.     Tu  plea  in  abatement  of  writ. 

And  the  said  A.  B.  says,  that  for  any  thing  by  the  said  C.  D.  in 
his  plea  alleged,  the  writ  aforesaid  ought  not  to  be  quashed,  because 
he  says  that  the  said  plea,  in  manner  and  form  as  above  pleaded, 
and  the  matters  therein  contained,  are  not  sufficient  in  law,  to 
quash  the  writ  aforesaid  ;  and  that  he  the  said  A.  B.  is  not  bound 
by  the  law  of  the  land  to  answer  the  same ;  and  tliis  he  is  ready 
to  verify :  whereupon,  he  prays  judgment  that  the  writ  aforesaid 
may  be  adjudged  good,  and  that  the  said  C.  D.  may  answer 
over,  &c. 

Joinder. 

And  the  said  C.  D.  says  that  the  plea  aforesaid,  in  manner  and 
form  as  the  same  is  by  him  pleaded,  and  the  matters  therein  con- 
tained, are  sufficient  in  law  to  quash  the  writ  aforesaid,  which  he 
the  said  C.  D.  is  ready  to  verify  ;  and  because  the  said  A.  B.  hath 
not  answered  the  said  plea,  nor  denied  the  same;  he  as  before, 
prays  judgment  of  the  writ  aforesaid,  and  that  it  may  be  quash- 
ed, &c. 


No.  2.     To  Declaration. 

And  the  said  C.  D.  comes  and  says  that  the  said  A.  B.  ought 
not  to  have  his  action  aforesaid  against  him,  because  he  says  that 
the  declaration  aforesaid,  \or  the  first  or  second  count,  ^c]  and  the 
matters  therein  contained,  are  not  sufficient  in  law  to  maintain  the 
action  aforesaid,  and  that  he  is  not  bound  by  law  to  answer  the 
same  ;  wherefore  he  prays  judgment,  and  that  the  said  A.  B.  may 
be  barred  of  his  said  action  against  him.  (a) 


(o)  For  a  special  demurrer,  add,  "And  for  causes  of  demurrer  the  said 
C.  U.  shows  to  the  court  hero  the  fallowing,  to  wit,  I.  That,  &c.  II. 
That,  &c." 


ASSUMPSIT.  40 

Joinder.  And  the  said  A.  B.  says  that  his  declaration  afore- 
said is  sufficient  in  law  to  maintain  his  action -aforesaid,  and  that 
he  is  ready  to  verify  the  same  ;  wherefore  he  prays  judgment  and 
his  damages  aforesaid,  to  be  adjudged  to  him.  (a) 


No.  3.     To  Pleas. 

And  the  said  A.  B.  says  that  the  said  several  pleas  of  the  said 
C.  D.  in  manner  and  form  pleaded,  and  the  matter  in  the  same 
contained,  are  not  sufficient  in  law  to  bar  the  said  A.  B.  of  his 
aforesaid  action  against  him,  and  that  he  is  not  bound  by  law  to 
answer  the  same  ;  and  this  he  is  ready  to  verify :  whereupon  he 
prays  judgment,  and  his  damages  aforesaid  to  be  adjudged^  to  him. 
See,  note  (a)  to  last  Precedent.~\ 

Joinder.  And  the  said  C.  D.  says  that  the  said  several  pleas 
and  the  matters  therein  contained,  in  manner  and  form  as  the  same 
are  by  him  pleaded,  are  good  and  sufficient  inlaw  to  bar  the  afore- 
said action  of  the  said  A.  B.;  wherefore  he  prays  judgment,  and 
that  the  said  A.  B.  may  be  barred  of  his  aforesaid  action  against 
him. 


No.  4.     Demurrer  to  Evidence. 

This  day  came  the  parties  by  their  attornies,  and  thereupon 
came  a  Jury,  to  wit,  E.  F.  &c.,  wiio  being  empannelled  and  sworn 
the  truth  to  speak,  upon  the  issue  joined  between  the  parties,  the 
said  A.  B.  to  maintain  the  issue  on  his  part,  shewed  in  evidence  to 
the  jury  aforesaid  a  certain  instrument,  &c.  [Jiere  state  the  evi- 
dence^ and  the  said  C.  D.  says,  that  the  aforesaid  matters  to  the 
jury  aforesaid  shown  in  evidence  by  the*said  A.  B.  are  not  sufficient 


(a)  In  Debt,  say — prays  judgment  and  his  debt  aforesaid,  with  his  dam, 
ages  to  be  adjudged,  (SJ-c. — In  Cask  and  Trespass — judgment  and  his  dam- 
ages ajoresaid,  6,c. — In  Covknant — judgment  and  liis  damages  aforesaid, 
8fc. — In  Ejkctment — judgment  and  possession  of  his  term  aforesaid,  with 
damages,  t^*c. — In  Detinue — judgment  and  delivery  of  the  goods  and  chat- 
tcli  aforesaid,  ivilh  his  damages,  <S-c. 

G 


50  ASSUMPSIT. 

in  law  to  maintain  the  said  issue  on  the  part  of  the  said  A.  B.  and 
that  he  the  said  C.  D.  is  not  bound  by  law  to  answer  the  same  ;  and 
this  he  is  ready  to  verify  :  wherefore  he  prays  judgment,  and  that 
the  jury  aforesaid  may  be  discharged  from  giving  any  verdict  upon 
the  said  issue,  and  that  the  said  A.  B.  may  be  barred  of  his  action 
aforesaid  against  him. 


Joinder.  And  the  said  A.  B.  for  that  he  hath  shown  in  evidence 
to  the  jury  aforesaid  sufficient  matter  in  maintenance  of  the  said 
issue,  which  matter  the  said  C.  D.  doth  not  deny,  nor  in  any  man- 
ner answer  thereto,  prays  judgment,  and  Ms  damages  to  be  ad- 
judged to  him. 

Whereupon  it  is  told  to  the  jury  aforesaid,  that  they  should  en- 
quire what  damages  the  said  A.  B.  hath  sustained,  by  reason  of  the 
matters  shown  in  evidence  as  aforesaid,  in  case  it  shall  happen,  that 
judgment  shall  be  given  upon  the  evidence  aforesaid,  for  the  said  A. 
B.  and  the  jury  aforesaid,  upon  their  oaths  aforesaid,  thereupon 
say,  that  if  it  shall  happen,  that  judgment  shall  be  given  for  the 
said  A.  B.  upon  the  evidence  aforesaid,  then  they  assess  the  dam- 
ages of  the  said  A.  B.  by  him  sustained,  by  reason  of  the  matter 

shown  in  evidence  as  aforesaid,  to dollars :  and  thereupon  the 

jury,  by  the  assent  of  the  said  parties,  are  discharged  from  giving 
any  further  verdict  upon  the  premises.  [For  the  judgment  on 
this  verdict,  See,  Judgments  in  Assumpsit,  No.  14.] 


ASSUMPSIT.  51 


Trials  and  Verdicts. 

Tlicre  is  nothing  in  our  practice  analogous  to  trials  at  Nisi  Prius 
in  England,  and  indeed  our  whole  course  of  proceedings,  prepara- 
tory to  a  trial,  is  entirely  at  variance  with  the  proceedings  at  Com- 
mon Law.  We  have  no  plea  roll,  issue  roll  or  judgment  roll.  Each 
Clerk,  has  a  book,  prepared  for  the  purpose,  called  the  Appearance 
Docket,  in  which,  every  suit  is  entered,  at  the  time  of  its  commence- 
ment, by  stating  in  regular  order,  the  names  of  the  Plaintiff  and 
Defendant,  the  name  of  the  plaintiff "'s  attorney,  and  the  time  of  suing 
out  the  original  writ.  The  parties  then  proceed  to  make  up  the 
issue  by  filing  the  declaration,  plea,  demurer  &c.  agreeably  to  the 
rules  of  Court.  The  declaration,  plea,  &c.  are  each  contained 
upon  seperate  pieces  of  paper,  and  are  deposited  with  the  Clerk, 
who  endorses  the  time  of  filing  upon  the  back  of  each.  The  original 
writ,  declaration,  plea,  and  all  other  papers  belonging  to  the  case, 
are  kept  by  the  Clerk,  in  a  bundle,  so  that  there  are  as  many  bundles 
as  there  are  causes  in  Court.  These  bundles,  for  the  sake  of  easy 
reference,  are  generally  arranged  in  alphabetical  order.  The 
Clerk  has  another  book,  called  the  Journal  or  Order  Book,  in  which, 
are  entered,  the  continuances,  orders,  and  every  other  act  of  the 
Court,  from  the  commencement  of  the  suit  to  final  judgment.  There 
is  not  a  Journal  to  each  cause,  but  each  Journal  contains  all  the 
orders,  acts  and  decrees  of  the  Court,  in  all  causes  and  matters 
whatsoever  pending  in  Court  for  the  time  being,  and  after  each 
cause  is  finally  determined,  a  complete  record  is  made  up,  by 
copying  into  a  book  for  that  purpose,  the  original  writ,  declaration, 
&c.  together  with  the  orders  of  Court  and  final  judgment.  See, 
Complete  Record,  (a)  After  a  cause  is  at  issue,  it  is  brought  on  to 
trial  as  follows  :  The  Clerk,  at  least  twelve  days  before  the  com- 
mencement of  each  term,  enters  in  a  book,  called  the  trial  or  ixsiir 


(a)  In  some  parts  of  ihc  State,  the  entries  upon  the  Journal,  are  merely 
concise  memoranda  of  the  proceedings  of  tlie  day,  from  whicli  full  records 
are  made  up  in  vacation;  but  tiiis  [)ractice  is  not  warranted  by  the  Statute. 
The  ordered,  judgmenis.decr^os,  <.Vc.  should  be  entered  up.>n  the  Journal  at 
length,  and  witli  tiie  same  teciinical  precision  as  is  required  in  the  complete 
record,  I  Ohio  Rep.'2Q^. 


52  ASSUMPSIT. 

docket,  all  causes,  petitions,  &c.  in  which  an  issue  is  to  be  tried,  or 
an  inquiry  of  damages  is  to  be  made,  or  special  orders  to  be  taken, 
or  a  special  verdict,  or  a  case  agreed,  demurer,  or  other  matter  of 
law,  is  to  be  argued,  in  the  same  order  as  they  stand  in  the  course 
of  proceeding;  setting  as  near  as  may  be,  an  equal  number  of  causes 
to  each  day  of  the  time  allowed  by  law  for  the  holding  of  such 
Court,  if  in  his  opinion,  so  many  days  will  be  required,  in  trying 
the  causes  ready  for  trial;  and  also  issue  subpoenas  for  witnesses 
to  attend  on  the  days  on  which  the  causes  stand  for  trial.  No 
cause  can  be  removed  from  its  place  on  the  docket;  but  all  causes, 
in  which  the  intervention  of  a  jury  is  necessary,  must  be  tried  in 
the  order  in  which  they  stand,  unless  the  parties  otherwise  agree, 
or  be  continued  until  the  next  term.  Stat.  Vol.  29,  p.  74.  §.91. 
Where  there  are  issues  in  law  and  in  fact,  in  the  same  cause,  the 
issues  in  law  must  be  first  determined.     Stat.  Vol.  29,  p.  73.  §  81. 

The  manner  of  convening  a  Jury  for  the  trial  of  causes,  is  also 
very  different  from  the  English  practice.  In  England  a  Venire 
facias,  is  issued  in  every  cause,  but  under  our  Statute,  there  is  but 
one  Venire  for  all  the  causes  to  be  tried  at  any  one  Term.  The 
same  Jury  try  every  issue  in  fact,  which  is  ready  for  trial  at  that 
term  to  which  the  Venire,  is  returnable.  Stat.  Vol.  29.  p.  94.  See, 
Select  writs,  No.  8. 

The  Jury  may  return  a  general  verdict  upon  the  whole  matter; 
or  a  special  verdict,  finding  certain  specific  facts  to  be  true,  and 
submitting  the  question  of  law  arising  upon  such  specific  facts,  to 
the  consideration  of  the  Court.  Special  verdicts,  however,  are 
rarely  taken  in  our  practice. 

The  court  may  conform  a  verdict  to  the  intention  of  the  jury 
without  consulting  them.  3  Ohio  Rep.  384.  Ohio  Conds.  614. 
5  Ohio  Rep.  239.  The  Jury  must  pass  upon  all  the  issues  or  it  is 
error.     5  Ohio  Rep.  238,  260. 


No.  1 .     Verdict  for  Plaintiff,  o  n  non-assumpsit. 

A.  B.    J 

vs.       >    In  assumpsit. 

CD.    ) 

This  day  came  the  parties  by  their  attornies, 
and  thereupon  came  a  jury,  to  wit,  E.  F.  &c.  who  being  empannel- 


ASSUMPSIT.  53 

led  and  sworn,  to  speak  the  truth,  upon  the  it;sue  joined  between 
the  parties,  upon  their  oaths  do  say,  *  that  the  said  C.  D.  did  assume 
and  promise  in  manner  and  form  as  the  said  A.  B.  hath 
complained  against  him;  and  they  assess  the  damages  of  the  said 
A.  B.  by  reason  thereof  to dollars.  («)  Therefore  it  is  con- 
sidered, &c. 

No.  2.      Verdict  for  Plaintiff,  against  adminis- 
trator, on  non-assumpsit. 

[Proceed  as  in  No.  1.  to  the  * that 

the  said  E.  F.  in  his  life  time  did  assume  and  promise  in  manner 
and  form  as  the  said  A.  B.  hath  in  that  behalf  alleged,  and  they 
assess,  &c.     [Conclude  as  in  No.  1.] 


No.  3      Verdict  for  Plaintiff ,  rohen  all  of  several 
issues  are  found  for  him. 

Proceed  as  in  No.  1 .  to  the  * that  as 

to  tiie  first  issue  joined  between  the  parties,  the  said  C.  D.  did 
assume  and  promise  in  manner  and  form  as  the  said  A.  B.  hath 
complained  against  liim;  and  as  to  the  second  issue  joined 
between  the  parties,  the  jury  aforesaid  say,  that  at  the  time  of  the 
making  of  the  said  several  promises  in  the  declaration  mentioned, 
the  said  C.  D.  was  not  within  the  ago  of  twenty  one  years  in  man- 
ner and  form  as  he  hath  alleged ;  and  as  to  the  third  issue 
joined  between  the  parties,  the  jury  aforesaid  say,  that  the  said  A.B. 
was  not  indebted  to  the  said  C.  D.  in  manner  and  form  as  the  said 
C.  D.  hath  alleged.  [Proceed  in  this  ynanner  to  state  the 
verdict  of  the  Jury  upon  each  issue  seperatehj,  in  the  negative  or 
affrmative  of  the  pleading  which  concludes  to  the  country,  according 
as  it  is  pleaded  by  the  Plaintiff'  or  Defendant  and  conclude  as  iii 
No.   1.] 


(rt)  If  there  be  a  motion  for  a  new  trini,  or  in  arrest  of  .Iiidgincnt,  such 
motion  is  entered  thus:  "and  tliereupon  tlio  said  dcfendnnt  moves  for  a  new 
trial,  or,  in  arrest  of  juJgi)uiit,for  reasons  oti  file,"  and  the  judgment  on 
the  verdict  is  postponed  until  the  motion  is  disposed  of.  A  party  cannot 
move  for  anew  trial  after  a  motion  in  arrest  of  judgment.  Stat.  Vol.  29. 
p.  73.  §  83. 


54  ASSUMPSIT. 

No.  4.      Verdict  for  Plainlijj\  upon  a  plea  of  tender 
as  to  part,  and  non-assumpsit  as  to  residue. 

[Proceed  as  in  No.  1 ,  to  the  *  that 

the  said  C.  D.  did  assume  and  promise  to  an  amount  beyond  the 
said  sum  o^ fifty  dollars  by  the  said  C.  D.  in  that  behalf  alleged,  to 

wit,  to  the  amount  of dollars  parcel  of  the  several  sums  of 

money  in  said  declaration  mentioned,  in  manner  and  form  as  the 
said  A.    B.    hath  complained  against  him,    and  they   assess  the 

damages  of  the  said  A.  B.  by  reason  of  the  premises  to dollars, 

over  and  above  the  said  sum  of  fifty  dollars  above  mentioned; 
Therefore  &c.  [Conclude  as  in  No.  1.] 


No.  5.      When  one  issue  is  found  for  the    ( 
Plaintiff  and  another  for  Defendant.  \ 

[Proceed  as  in  No.  1 .  to  the  *  that  as 

to  the  first  issue  joined  between  the  parties,  the  said  C.  D.  did 
assume  and  promise  in  manner  and  form  on  the  said  A.  B.  hath  in 
the  first  and  second  counts  of  his  declaration  alleged,  and  they  assess 
the  damages  of  the  said  A    B.  by  reason  of  not  performing  the 

promises  in  said  first  and  second  counts  mentioned  to dollars. 

And  as  to  the  last  issue  joined  between  the  parties,  the  jury  afore- 
said say,  that  the  said  C.  D.  did  not  within  six  years  next  before  the 
Commencement  of  this  suit  assume  and  promise,  in  manner  and 
form  as  the  said  A.  B.  hath  in  the  third  and  fourth  counts  of  his 
declaration  complained  against  him. 


No.  6.      Verdict  for  Plaintiff  on  Default. 

A.  B.    ^ 

vs.      >    In  assumpsit. 
C.  D.    ) 

This  day  came  the  said  A.  B.  by  his  attorney 
and  the  said  C.  D.  though  solemnly  called,  came  not  but  made 
default;  whereupon  it  is  considered  that  the  said  A.  B.  ought  to 
recover  his  damages  by  reason  of  the  premises,  and  the  said  A.  B. 


ASSUMPSIT.  55 

or  C.  D.  ihereiipon  demanding  a  jury  to  assess  the  damages  afore- 
said, *  a  jury  being  called,  come,  to  wit,  E.  F.  &c.  who  being 
empannelled  and  sworn  well  and  truly  to  assess  the  damages 
aforesaid,  do  assess  the  same  to dollars;  Therefore  &c.  {^Con- 
clude as  in  No.  1.] 


No,  7.     The  like,  upon  a  judgment  hy  clef ault  al  one  Term  } 
and  damages  assessed  at  a  subsequent  Term.  \ 

[At  the  first  term,  enter  the  judgment  as  in  the 
last  precedent  to  the,  *  and  then,  say,  "It  is  ordered  that  this  cause 
be  continued  until  next  term  for  the  assessment  of  said  damages." 
At  the  term  ivhen  the  damages  are  assessed,  say,  "This  day  came 
"the  parties  by  their  attornies,  and  thereupon  came  a  jury,  to  wit, 
'•E.  F.  &c.  who  being  empannelled  and  sworn  well  and  truly  to 
"assess  the  damages  sustained  by  the  said  A.  B.  by  the  non-per- 
"formance  of  the  promises  of  the  said  C.  D.  in  the  said  declaration 
"mentioned,  do  assess  the  same  to Dollars;  Therefore,  &c. 


No.  8.      Verdict  for  the  Plaintiff,  against  two  defen-  ^ 

dants,  when  one  pleads  non-assumpsit,  > 

and  the  other  is  defaulted.  ) 

A.  B.     ) 

vs.      >    In  assumpsit. 
C.  D.    ) 

This  day  came  the  said  A.  B.  by  his  attorney, 
and  also  the  said  C.  D.  by  his  attorney,  and  the  said  E.  F.  though 
solemnly  called,  came  not  but  made  default,  whereupon  it  is  con- 
sidered, that  the  said  A.  B.  ought  to  recover  his  damages  against  the 
said  E.  F.  by  reason  of  the  premises,  and  thereupon  came  a  jury, 
to  wit,  G.  II.  &;c.  who  being  empannelled  and  sworn,  the  truth  to 
speak,  upon  the  issue  joined  between  the  said  A.  B.  and  the  said 
C.  D.  and  also  well  and  truly  to  assess  the  damages  sustained  by 
the  said  A.  B.  by  the  non-performance  of  the  promises  of  the  said 
C.  D.  and  E.  F.  in  the  declaration  mentioned,  upon  their  oaths  do 
say,  that  the  said  C.  D.  did  assume  and  promise  in  manner  and 


50  ASSUMPSIT. 

form  as  the  said  A.  B.  hatli  complained  against  him;  and  they 
assess  the  damages  of  the  said  A.  B.  by  reason  of  tlie  not  perform- 
ing of  the  promises  in  the  declaration  mentioned,  as  well  against 

the  said  C.  D.  as  against  the  said  E.  F.  to dollars:  Therefore, 

&c.  [Conclude  as  in  No.  1.]  (a) 


No.  9.   Assessment  of  damages  on  demurrer  } 
ove?  ruled,  Nul  tiel  record,  &c.       ji 

[Enter  the  proper  judgment,  See,  Judgments; 
and  then  say,  "and  thereupon  came  a  jury,  to  wit,  E.  F.  &c.  who 
being  empannelled  and  sworn  well  and  truly  to  assess  the  damages 
sustained  by  the  said  A.  B.  by  reason  of  the  non-performance  of 
the  promises  in  the  declaration  mentioned  do  assess  the  same  to 
Dollars:  Therefore,  It  is  considered,  &c." 


No.   10.      Verdict  for  defendant,  on  non-suit. 

A.  B.    ^ 

vs.      >    In  assumpsit. 
C.  D.    ) 

This  day  came  the  parties  by  their  attornies, 
and  thereupon  came  a  jury,  to  wit,  E.  F.  &c.  who  being  em pannel- 


(o)  It  is  provided  by  Statute,  Vol.  29.  p.  73.  \  82,  that  upon  judgment 
by  default,  the  Court  shall  assess  the  damages,  unless  a  writ  of  enquiry  be 
demanded  by  the  Plaintiff  or  Defendant.  But  where  two  or  more  are  sued 
upon  a  joint  contract,  and  only  one  of  them  makes  defence,  it  seems  that  the 
Court  ought  not  to  assess  the  damages,  and  enter  final  judgment  against 
those  who  do  not  appear;  for  if  upon  the  trial  of  the  issue,  between  the 
Plaintiff  and  the  Defendant  who  does  appear  a  verdict  should  be  found 
against  the  Plaintiff,  there  must  be  judgment  in  favor  of  all  the  defendants. 
Bac.  Ahg.  Tit.  Verdict. '5  Day.  ^Q?>.  Although  this  section  of  the  Statute, 
in  terms,  embraces  all  cases  of  default,  as  well  in  action  ex  delicto,  as  ex 
contractu,  yet  the  Court,  in  practice  exercise  a  discretion,  in  the  assess- 
ment of  damages.  In  actions  upon  notes,  bills,  or  covenants  for  the  payment 
of  a  sum  certain,  in  debt  upon  judgment,  and  perhaps  some  other  cases, 
where  the  quantum  of  damages,  depends  upon  calculation,  or  can  be  easily 
ascertained,  the  Clerk,  or  the  Attorney  for  the  plaintiff,  makes  up  the  amount 
of  damages,  which  is  inspected  by  the  Court,  and  judgment  entered  accor- 
dingly. In  all  difficult  cases  however,  the  Court  submit  the  enquiry  of 
damages  to  a  jury. 


ASSUMPSIT.  67 

led  and  sworn  the  truth  to  speak  upon  the  issue  joined  between  the 
parties,  the  said  A.  B.  thereupon,  fails  to  further  prosecute  his 
suit  against  the  said  C.  D.  and  thereupon  the  jury  were  discharged 
from  the  furtiicr  consideration  of  tiic  premises.  Therefore  it  is 
considered,  &c. 


No.   11.      Va'dict for  defendant,  on  non-assumpsit, 

[Proceed  as  in  No.   1.  to  the  * that  the 

said  C.  D.  did  not  assume  and  promise  in  manner  and  form  as  the 
said  A.  B.  hath  complained  against  him;  Therefore,  &c. 


No.   12.      Verdict  for  one  defendant,  on  non-assumpsit,  where 
another  has  let  judgment  go  by  default. 

This  day  came  the  said  A.  B.  by  his  attorney, 
and  also  the  said  C.  D.  by  his  attorney,  and  the  said  E.  F.  though 
solemnly  called,  came  not  but  made  default,  whereupon  it  is  con- 
sidered, that  the  said  A.  B.  ought  to  recover  liis  damages  against 
the  said  E.  F.  by  reason  of  the  premises;  and  thereupon  come  a 
jury,  to  wit,  G.  H.  &c.  who  being  empannelled  and  sworn  the  truth 
to  speak  upon  the  issue  joined  between  the  said  A.  B.  and  the  said 
C.  D.  and  also  well  and  truly  to  assess  the  damages  sustained  by 
the  said  A.  B.  by  the  non-performance  of  the  promises  of  the  said 
C.  D,  and  E.  F.  in  the  declaration  mentioned,  u})on  their  oaths  do 
say,  that  the  said  C.  D.  did  not  assume  or  promise  in  manner  and 
form  as  the  said  A.  B.  hath  doclarod  against  him;  and  thcreu|)on  the 
said  jury  are  discharged  from  iiuiuiring  against  the  said  E.  F.  what 
damages  the  said  A.  B.  hath  sustained  in  the  premises;  Therefore, 
&c.     See,  No.  9.  note  (a). 


No.  13.      Ve7-dict  for  Defendant,  Administrator,  ( 
on  non-assumpsit  by  Intestate.  \ 

[Proceed  as  i}i  No.  1.  to  the  * tliat 

the  said  E.  F.  in  his  life!  time  did  not  assume  or  promise  in  manner 
and  form  as  the  said  A.  B.  Iiath  in  tluit  bchnlf  allcirod.  Therefore, 
&c.  H 


58  ASSUMPSIT. 


No.  14.     For  defendant,  on  several  issues. 

[Proceed  as  in  No.  1.  to  the  * that 

g.s  to  ihQ  first  issue  joined  between  the  parties,  the  said  C.  D.  at  the 
time  of  the  making  of  the  several  promises,  in  the  first  and  second 
counts  of  the  said  declaration  mentioned,  was  an  infant  within  the 
age  of  twenty  one  years,  in  manner  and  form  as  the  said  C.  D.  hath 
in  that  behalf  alleged:  And  as  to  the  second  issue  joined  between 
the  parties,  the  jury  aforesaid  say,  that  the  goods,  wares  and 
merchandise  in  the  third  count  of  the  declaration  mentioned,  were 
not  necessary  or  suitable  to  the  estate  and  degree  of  the  said  C.  D. 
in  manner  and  form  as  the  said  A.  B.  hath  in  that  behalf  alleged. 
And  as  to  the  last  issue  joined  between  the  parties,  the  jury  afore- 
said, say,  that  the  said  C.  D.  did  not  after  he  attained  the  age  of 
twenty  one  years,  assent  ratify  or  confirm  the  several  promises 
and  undertakings  in  the  fourth  and  fifth  counts  of  the  declaration 
mentioned,  or  any  of  therp,  in  manner  and  form  as  the  said  A.  B. 
hath  in  that  behalf  alleged:  Therefore,  &g. 


No.   15.      When  one  issue  is  found  for  the  Plaintiff  ) 
and  another  for  Defendant.  ) 

[Proceed  as  in  No.  1.  to  the  *  that 

as  to  the  first  issue  joined  between  the  parties,  the  said  C. 
D.  did  assume  and  promise  in  manner  and  form  as  the  said  A.  B. 
in  the  first  and  second  counts  of  his  declaration  hath  alleged,  and 
they  assess  the  damages  of  the  said  A.  B.  by  reason  of  the  not  per- 
forming the  promises  in  the  smd first  and  second  counts  mentioned, 

to, dollars:     And  as  to  the  last  issue  joined  between  the  parties, 

the  jury  aforesaid,  say,  that  the  "said  C.  D.  did  not  within  six  years 
before  the  commencement  of  this  suit  assume  or  promise,  in  man- 
ner, and  form  as  the  said  A.  B.  hath  in  the  third  and  fourth  counts 
of  the  declaration  complained  against  him:  Therefore,  &c, 


ASSUMPSIT.  59 

No.   16.      Verdict  for  defendant,  on  notice  of  set-off , 
balance  found  in  favour  of  defendant. 

[Proceed  as  in  No.  1.  to  the  * that 

the  said  C.  D.  did  assume  and  promise  in  manner  and  form  as  the 
said  A.  B.  hath  complained  against  him  and  do  assess  the  damages 
of  the  said  A.  B.  by  reason  thereof  to  300  dollars;  and  the  said  jury- 
do  further  say,  that  the  said  A.  B.  is  indebted  to  the  said  C.  D.  in  the 
sum  of  300  dollars  parcel  of  the  said  several  sums  of  money  de- 
manded by  the  said  C.  D.  in  his  notice  of  set-off";  and  thereupon 
the  said  jury  do  find  that  a  balance  of  500  dollars  is  due  from  the 
said  A.  B.  to  the  said  C.  D.  after  allowing  and  crediting  to  the  said 
A.  B.  the  said  sum  of  300  dollars,  his  damages  in  form  aforesaid 
assessed;  Therefore,  &c.  See,  Judgments,  No.  26. 


no  ASSUMPSIT. 


Judgments. 


Judgments  are  either  interlocutory  or  final.  Interlocutory 
judgments  arc,  in  ordinary  acceptation,  those  incomplete  decisions 
whereby  the  right  of  the  plaintift'is  established,  but  the  quantum  of 
damages  sustained  by  him  is  not  ascertained,  for  this  is  a  matter, 
which  in  general  cannot  be  done,  without  the  intervention  of  a  jury. 
Final  judgments  are  such  as  at  once  finish  the  proceedings,  by 
declaring  that  the  plaintiff  either  has,  or  has  not,  entitled  himself 
to  recover,  and  by  ascertaining  to  what  amount  he  shall  obtain 
redress.  XI.  Petersd.  Ahg.  642.  It  will  appear  then,  that  judg- 
ments in  debt,  for  a  sum  certain,  judgments  by  confession,  and  all 
judgments  in  favor  of  the  plaintiff,  after  verdict,  are  final;  but  in 
every  other  case,  as  on  default  or  demurrer,  in  actions  of  assumpsit, 
covenant,  case,  trespass,  trover,  &c.  the  judgment  is  interlocutory 
in  the  first  place,  deciding  only  that  the  plaintiff  ought  to  recover, 
but  leaving  the  amount  to  be  ascertained  by  a  jury,  upon  an  inquiry 
of  damages,  or  by  the  Court.  In  our  practice  no  writ  of  inquiry 
is  sued  out,  as  in  England,  but  after  a  judgment  on  default,  demurrer 
&c.  is  entered,  the  inquiry  of  damages  is  submitted  to  the  regulai* 
jury  which  is  in  attendance  at  every  term  of  the  Court.  In  Eng- 
land, damages  may  be  assessed,  in  cases  of  bills  of  exchange, 
promissory  notes,  &c.  by  a  reference  to  the  master,  or  prothonota- 
ry.  VII.  Petersd.  Abg  .503.  Lee's  Diet.  419.  It  is  also  provided  by 
our  Statute,  Vol.  29.  p.  73.  §  82.  that  upon  judgment  by  default,  the 
Court  shall  assess  the  damages,  unless  a  writ  of  inquiry  be  deman- 
ded by  the  plaintiff  or  defendant.  This  provision  seems  to  embrace 
all  cases  of  default,  as  well  in  actions  ex  delicto,  Sisex  contractu,  yet 
the  Court  exercise  a  discretion  in  the  assessment  of  damxages.  In 
actions  upon  notes,  bills,  covenants  for  the  payment  of  a  sum  cer- 
tain, debt  upon  judgment,  and  perhaps  in  some  other  cases,  where 
the  quantum  of  damages,  depends  upon  calculation,  or  can  be  easily 
ascertained,  the  Clerk,  or  the  Attorney  for  the  Plaintiff,  makes  up 
the  amount  of  damages,  wliich  is  inspected  by  the  Court,  and  judg- 
ment is  entered  accordingly.  In  all  difficult  cases,  it  is  the  common 
practice  to  submit  the  inquiry  of  damages  to  a  Jury.  The  right 
to  recover  having  been  established,  and  the  damages  having  been 
assessed  by  the  Court  or  ascertained  by  the  jury,  final  judgment  is 
entered  up  accordingly. 


ASSUMPSIT.  61 


No.   1.  Judgment  fur  Plainl'tff  on  Demurrer 
to  a  plea  in  Abatement. 

A.  13.     \ 

vs.       >    In  assumpsit. 
C.  D.     ) 

This  cause  came  on  to  be  heard  upon  the 
flemurrcr  of  the  said  A.  B.  to  the  plea  in  Abatement  of  the  said  C. 
D.  and  was  argued  hy  counsel,  and  the  Court  being  fully  advised  in 
the  premises,  are  of  opinion  that  the  said  plea  in  Abatement,  and  the 
matters  therein  contained,  are  not  sufficient  in  law  to  quash  the 
w^rit  of  the  said  A.  13.  Whereupon,  it  is  considered,  that  the  said 
C.  D.  do  further  answer  to  the  writ  of  the  said  A.  B. 


No.  2.     Judgment  for  Plaintiff,  on  Denmrrer  to  a    ) 
Replication  to  a  jylea  in  Abatement.       ) 

A.  B.     ) 

vs.       /    In  assumpsit. 
C.  D.    ) 

This  cause  came  on  to  be  heard  upon  the 
demurrer  of  the  said  C.  D.  to  the  replication  of  the  said  A.  B.  to  the 
plea  in  abatement  of  the  said  C.  D.  and  was  argued  by  counsel,  and  the 
Court  being  fully  advised  in  the  premises  are  of  oj)inion  that  the 
rcj)lication  albrcsaid,  and  the  matters  therein  contained,  are  sulfi- 
cient  in  law  to  maintain  the  said  writ  of  the  said  A.  B.  Whereupon, 
it  is  considered  that  the  said  C.  D.  do  further  answer  to  the  writ  of 
the  said  A.  B. 


No.  3.     Judgment  for  Plaintiff ,  on  Demurrer  to  a 

Declaration  or  Replication,  and  damages 
assessed  by  a  Jury. 


In  assumpsit. 


This  cause  came  on  to  bo  heard  upon  the  demur- 
rer of  the  said  C.  D.  to  the  declaration,  or,  replication,  of  the  said 


6a  ASSUMPSIT. 

A.  B.  and  was  argued  by  counsel,  and  the  Court  being  fully  ad- 
vised in  the  premises,  are  of  opinion  that  the  declaration,  or,  re- 
plication, aforesaid,  and  the  matters  therein  contained,  are  sufficient 
in  law,  to  support  this  action ;  {a)  Whereupon  it  is  considered  that 
the  said  A.  B.  ought  to  recover  his  damages  against  the  said  C. 
D.  by  reason  of  the  premises,  and  the  said  A.  B.  demanding  a  jury 
to  assess  the  same,  a  jury  being  called,  come,  to  wit,  E.  F.  &c. 
who  being  empannelled  and  sworn  well  and  truly  to  assess  the 
damages  sustained  by  the  said  A.  B.  by  reason  of  the  non-perform^ 
ance  of  the  promises  of  the  said  C.  D.  in  the  declai-ation  mention- 
ed, upon  their  oaths  do  assess  the  same  to dollars  ;  therefore 

it  is  considered  that  the  said  A.  B.  recover  of  the  said  C,  D.  the 

said  sum  of dollars,  his  damages   aforesaid,  in  form  aforesaid 

assessed,  and  also  liis  costs  in  this  behalf  expended,  taxed  to 

dollars,  (b) 

No.  4.     Judgment  for  Plaintiff,  on  demwrer 
to  a  plea  or  rejoinder. 

A.  B.     ^ 

vs.         >    In  assumpsit. 
C.  D.     ) 

This  cause  came  on  to  be  heard  upon  the  de- 
murrer of  the  said  A.  B.  to  the  plea,  or,  rejoinder,  of  the  said  C. 
D.  and  was  argued  by  counsel,  and  the  Court  being  fully  advised 


(a)  When  the  Demurrer  is /riyoZous,  or  filedybr  delay,  the  Court  will  in 
general  give  final  judgment;  but  when  it  is  filed  in  good  faith,  and  the 
Court  are  satisfied  that  the  party  has  merits,  leave  will  be  given  to  with- 
draw the  demurrer,  and  plead,  reply,  &c.  When  such  leave  is  given,  af- 
ter entering  the  judgment  upon  the  demurrer,  proceed  thus  :  "Whereupon 
the  said  C.  J),  moves  the  Court  for  leave  to  withdraw  his  said  demurrer, 
and  to  plead  to  the  said  declaration;  which  is  granted  him  on  payment  of 
costs  since  filing  the  demurrer."  It  is  the  practice  of  the  Supreme  Court 
to  limit  the  time  within  which  the  plea  shall  be  filed,  and  the  costs  paid,  in 
order  that  the  plaintiff  may  take  judgment  by  default,  if  no  plea  be  filed,  and 
that  the  defendant  may  be  attached  for  non-payment  of  the  costs.  The 
form  may  be  thus  :  "And  it  is  ordered  that  the  said  C.  D.  plead  to  the  said 
declaration  within days,  and  that  he  pay  said  costs  within days." 

[b)  In  the  Supreme  Court,  add,  "And  it  is  ordered  that  a  special  man- 
date be  directed  to  the  Court  of  Common  Pleas  for  said  County  of  to 

carry  this  judgment  into  execution." 

If  notice  of  appeal  be  given,  enter  the  notice  after  the  judgment,  thus  : 
"Notice  of  appeal,  by  plaintiff,  or,  defendant,  or,  by  both  parties." 


ASSUMPSIT.  63 

in  the  premises,  are  of  opinion,  that  the  said  jjlea^  or,  rejoinder,  and 
the  matters  therein  contained,  are  not  sufficient  in  law,  to  bar  the 
said  A.  B.  from  his  said  action  :  Whereupon  it  is  considered  that 
the  said  A.  B.  &c.  [Conclude  as  in  No.  3.] 

No.  5.     Judgment  for  Plaintiff,  hy  default,  arid 
damages  assessed  hy  tJie   Court. 

A.  B.    ^ 

vs.        >    In  assumpsit. 
C.  D.    ) 

This  day  came  the  said  A.  B.  by  his  attorney, 
and  the  said  C.  D.  though  solemnly  called,  came  not,  but  made 
default ;  whereupon  it  is  considered  that  the  said  A.  B.  ought  to 
recover  his  damages  by  reason  of  the  premises,  and  neither  of  the 
parties  requiring  a  jury,  and  the  Court  being  fully  advised  in  the 

premises,  do  assess  the  damages  of  the  said  A.  B.  to dollars  : 

therefore  it  is  considered  that,  &c.  [  Conclude  as  in  No.  3.] 


No.  6.     Judgment  for  Plaintiff,  on  default, 
damages  assessed  by  Jury. 


In  assumpsit. 


This  day  came  the  said  A.  B.  by  his  attorney,  and  the  said  C. 
D.  though  solemnly  called,  came  not,  but  made  default,  whereup- 
on it  is  considered  that  the  said  A.  B.  ought  to  recover  his  dam 
ages,  by  reason  of  the  premises,  and  the  said  A.  B.  or  C.  D.  there- 
upon demanding  a  jury  to  assess  the  damages  aforesaid,  a  jury 
being  called,  come,  to  wit,  E.  F.  &c.  who  being  empannelled  and 
sworn  well  and  truly  to  assess  the  damages  aforesaid,  do  assess 
the  same  to dollars  ;  Therefore  it  is  considered,  &.c.  [Con- 
clude as  in  No.  3.] 


No.  7.     Judgment  for  Plaintiff,  plea,  ) 

non-assumpsit,  and  verdict  for  Plaintiff.    \ 

[Enter   the  verdict  as  in    Verdicts  in  As- 


04  ASSUMPSIT. 

sumpsit.  No.  1.  Tliercforc  it  is  considesed,  &c.  {^Conclude  as  in 
No.  3.] 

No.  8.     The  like  against  an  Executor  or  Administrator. 

[Eiiter  the  verdict  as  in  No.  2.  Verdicts  in  As- 
sumpsit ; therefore  it  is  considered,  that  the  said  A.  B.  reco- 
ver against  the  said  C.  D.  as  executor,  or,  administrator,  as  afore- 
said, the  sum  of dollars,  his  damages  aforesaid  in  form  afore- 
said assessed  [and  also  his  costs  in  this  behalf  expended,  taxed  to 

dollars']  the  said  damages  [and  costs']  to  be  levied  of  the  goods 

and  chattels  which  were  of  the  said  E.  F.  at  the  time  of  his  death, 
and  in  the  hands  of  the  said  C.  D.  as  executor,  or  administrator  as 
aforesaid,  yet  to  be  administered.     See,  No.  3.  note  (b) 

Na.  9.     Judgment  for  Plaintiff,  on  submission  ) 

to  the  Court  to  try  issue  and  assess  damages.  \ 

K.B.) 

vs.        /    In  assumpsit. 
C.  D.    ) 

This  day  came  the  parties  by  their  attornies, 
and  submit  this  cause  to  the  Court  upon  the  issue  joined  between 
the  parties,  and  the  Court  bemg  fully  advised  in  the  premises,  do 
find  that  the  said  C.  D.  did  assume  and  promise  in  manner  and 
form  as  the  said  A.  B.  hath  complained  against  liim,  and  they  as- 
sess the  damages  of  the  said  A.  B.  by  reason  thereof,  to dol- 
lars :  therefore  it  is  considered  that  the  said  A.  B.  recover  of  the 

said  C.  D.  the  said  sum  of dollars,  his  damages  aforesaid  in 

form  aforesaid  assessed,  and  also  his  costs  in  this  behalf  expended, 
taxed  to dollars. 


No.  10.     Judgment  for  Plaintiff,  by  confession,  relicta 
verijicatione,  release  of  errors,  <^-c. 

A.  B.     ) 

vs.         >    In  assumpsit. 
C.  D.     ) 

This  day  came  the  parties  by  their  attornies, 
and  thereupon  the  said  C.  D.  relinquishing  his  plea,  says  that  he 


ASSUMPSIT.  63 

cannot  deny  the  action  of  the  said  A.  B.  nor,  but  tliat  he  did  as- 
sume and  promise,  in  manner  and  form  as  the  said  A.  B.  hath  com- 
plained against  him,  and  confesses  that  the  said  A.  B.  hath  sustained 

damages  by  reason  of  the  premises,  to dollars  :  Therefore,  by 

consent  of  parties,  it  is  considered  that  the  said  A.  B  recover  of  the 

said  C.  D.  the   said  sum  of dollars,  his  damages  as  aforesaid 

confessed,  and  also  his  costs  in  this  behalf  expended,  taxed  to 

dollars  :  and  the  said  C.  D.  releases  all  error  and  waives  all  right 
and  benefit  of  appeal. 


No.   11.     Jud foment  for  Plaintiff  on 

Replication  of  Nul  tiel  record. 


In  assumpsit. 


This  day  came  the  said  A.  B.  by  his  attor- 
ney, and  the  said  C.  D.  though  solemnly  demanded  to  appear  and 
produce  the  record  by  him  in  pleading  alledged,  comes  not,  nor 
produces  the  same,  but  therein  makes  default :  whereupon  it  is 
considered  that  the  said  A.  B.  ought  to  recover  his  damages  by 
the  reason  of  the  premises  ;  and  neither  of  the  parties  requiring  a 
Jury,  and  the  Court  being  fullv  advised,  &c.  \_Concliide  as  in 
No.  5.] 


No.   12.     Judgment  for  Plaintiff,  on  ) 

Plea  of  Nul  tiel  record.         \ 


In  assumpsit. 


This  day  came  the  parties  by  their  attornies, 
and  thereupon  the  record  aforesaid  being  seen  and  inspected  by 
Court,  it  sufficiently  appears,  that  there  is  such  a  record  of  recov- 
ery against  the  said  CD.  at  the  suit  of  tiie  said  A.  B.  as  the  said 
A.  B.  hath  alleged  ;  whereupon  it  is  considered  that  the  said  A.  B. 
ought  to  recover,  &c.  [Conclude  as  in  the  last  precedent,  or,  if  the 
damages  be  assessed  by  a  jury,  conclude  as  in  No.  0.] 
I 


m  ASSUMPSIT. 

No.   13.     Judgment  for  Plaintiff,  on  Warrant  of  JJttorney. 

A.  B.  ^ 

vs.      >  In  assumpsit. 
C.  D.  ) 

This  day  came  into  court  A.  B.  by  Mr.  O. 
his  counsel,  and  filed  his  declaration  against  the  said  C.  D.  and 
thereupon  E.  F.  one  of  the  attornies  of  this  Courts  appeared  in 
open  Court  in  behalf  of  the  said  C.  D,  and  by  virtue  of  a  warrant 
of  attorney  for  that  purpose  executed  by  the  said  C.  D.  and  now 
produced  in  open  Court  and  duly  proved,  (a)  waived  the  issuing  and 
service  of  process,  and  acknowledged  that  the  said  C.  D.  did  as- 
ssume  and  promise  in  manner  and  form  as  the  said  A.  B.  hath  in 
his  said  declaration  alledged  against  him,  and  confessed  that  the  said 

A.  B.  hath  sustained  damages  by  reason  thereof  to dollars. 

Therefore  it  is  considered  that  the  said  A.  B.  recover  of  the  said 

C-  D.  the  said  sum.  of dollars  his  damages  so  confessed  as 

aforesaid,  and  also  his  costs  in  this  behalf  expended,  taxed  to 

dollars.  Ai'id  by  virtue  of  the  same  ivarrant  of  attorney,  all  error 
is  released  and  all  right  and  benefit  of  appeal  waived  by  the  said 
C.  D. 


No.   14.     Judgment  for  Plaintiff, 

on  demurrer  to  evidence. 

\_E71ter  the  verdict,  No.  4.  page  49.  and  pro- 
ceed thus : — This  cause  came  on  to  be  heard  upon  the  demurrer 

(a)  This  statement  may  be  omitted  when  the  production  of  the  warrant  of 
attorney  is  not  required  by  the  Court.  Slat.  Vol,  29.  p.  69.  \  60.  It  is  al- 
ways safest,  however,  to  produce  the  power  of  attorney,  and  tile  it  with  the 
other  papers  in  the  cause.  No  process  whatever  is  necessary,  hut  a  decla- 
ration, [^commonly  containing  one  of  (he  money  counts']  must  be  filed. 

Warrants  executed  by  a  person  in  custody  upon  mesne  process  in  a  civil 
action,  to  the  Plaintiff,  are  invalid,  unless  some  attorney,  on  behalf  of  such 
person  in  custody,  and  expressly  named  by  him,  be  present  and  sign  the 
warrant  as  a  witness.  Slat.  Vol.  29,  p.  69.  §  60.  Notes  and  Bonds  are 
frequently  given  with  a  warrant  to  confess  a  Judgment,  if  not  paid.  In  such 
cases  the  following  form  may  be  adopted,  adding  the  proper  conditions,  6,c. 
Form  of  a  Warrant  of  Attorney  to  confess  Judgment.  I  do 
hereby  authorize  and  empower  A.  B.  or  any  other  Attorney  at  law  in  the 
State  of  Ohio,  to  appear  in  any  Court  of  record  in  said  State,  at  any  regu- 
lar term  of  such  Court,  and  waive  the  issuing  and  service  of  process,  and 

confess  a  judgment  against  me,  and  in  favor  of  J.  S.  for  the  sum  of 

dollars,  and  thereupon  to  release  all  error  and  waive  all  right  and  benefit 
of  appeal  in  my  behalf. 

Dated,  fcc.  Y.  X.  [seal.] 


ASSUMPSIT.  67 

of  the  defendant  to  the  evidence  of  the  plaintiff,  and  was  argued 
by  counsel,  and  the  Court,  being  fully  advised  in  the  premises,  are 
of  opinion  that  the  matter  to  the  jury  aforesaid,  in  form  afc-esaid, 
show^n  in  evidence  by  the  said  A.  B.  is  sufficient  in  law  to  maintain 
the  issue  joined  between  the  parties ;  Therefore  it  is  considered,  (fee 
[Co?iclude  as  in  No.  3.j 

No.   15.     Judgment  for  defendant 
upon  non-suit. 

A.  B.    ^ 

vs.       >    In  assumpsit. 
C.  D.    ) 

This  day  came  the  parties  by  their  attornies,  and 
thereupon  came  a  jury,  to  wit,  E.  F.  &c.  who  being  empannelled 
and  sworn  the  truth  to  speak  upon  the  issue  joined  between  the 
parties,  the  said  A.  B,  thereupon  fails  further  to  prosecute  liis 
suit  against  the  said  C.  D.,  and  thereupon  the  jury  are  discharged 
from  the  further  consideration  of  the  premises :  Therefore  it  is 
considered  that  the  said  C.  D.  go  hence  without  day,  and  recover 

of  the  said  A.  B.  his  costs  in  tliis  behalf  expended,  taxed  to 

dollars.     See  No.  3.  Note.  {!>) 

No.   IG.      The  like,  before  Jury  sworn. 

A.  B.    ') 

vs.      >    In  assumpsit. 
CD.) 

This  day  came  the  said  C.  D.  by  his  attorney, 
and  the  said  A.  B.  being  solemnly  called,  came  not,  nor  does  he 
further  prosecute  his  suit :  Therefore,  &c.  [Conclude  as  in  the  last 
precedent.'] 

No.   17.     Non-suit  for  icant  of  declaration. 

A.K\ 

vs.      >    In  assumpsit. 
C.  D.    ) 

This  day  came  the  said  C.  D.  by  liis  attorney, 


68  AvSSUMPSIT. 

and  the  said  A,  B.  having  failed  to  declare  against  the  said  C.  D. 
according  to  the  rules  of  Court,  or,  as  hereinbefore  ruled  to  do  : 
Therefore  it  is  considered,  &c.  [^Conclude  as  in  No.  15.] 

No.   18.     Non-suit  for  want  of  replication. 

A.  B.    ^ 

vs.      >    In  assumpsit. 
C.  D.    ) 

This  day  came  the  said  C.  D.  by  his  attorney,  and  the  said  A.  B. 
having  failed  to  reply  to  the  plea  of  the  said  C.  D  according  to  the 
rules  of  Court,  or,  as  hereinbefore  ruled  to  do :  Therefore,  &c. 
[Conclude  as  in  No.   15.] 

No.   19.     Judgment  for  defendant    } 
on  discontinuance.  ) 

A.  R   -) 

vs.      >    In  assumpsit. 
C.  D.   ) 

This  day  came  the  said  A.  B.  by  liis  attorney, 
and  discontinues  his  suit :  Therefore,  &c.  [Conclude  as  in  No.  15.] 


No.  20.     The  like,  on  nolle  prosequi. 

A.  B.    ^ 

vs.      >    In  assumpsit. 
C.  D.    ) 

This  day  came  the  said  A.  B.  by  his  attorney,  and  says  to  the 
Court  that  he  will  no  further  prosecute  his  suit :  Therefore,  «fec. 
[Conclude  as  in  No.  15.] 


No.  21.     TTie  like,  as  to  one  or  more  co7ints. 

A.  B.    ^ 

vs.     >    In  assumpsit. 
CD.) 

This  day  came  the  said  A.  B.  by  liis  attorney, 
and  says  to  the  Court  that  he  will  not  further  prosecute  hia  suit 


ASSUMPSIT.  69 

against  the  said  C.  D.  in  respect  of  the  promises  in  the Count 

or  Counts,  of  the  declaration  mentioned :  therefore  as  to  the  pro- 
mises in  that  Count  mentioned,  let  the  saidC.  D.  go  hence  witlKJUt 
day,  and  recover  of  the  said  A.  B.  liis  costs  in  that  behalf  ex- 
pended, &c. 


No.  21.     Judgment  for  defendant 
on  demurrer  to  Plea. 


In  assumpsit. 


This  cause  came  on  to  bo  heard  upon  tho 
demurrer  of  the  said  A.  B.  to  the  plea  of  the  said  C.  D.  and  teas 
argued  hy  counsel,  and  the  Court  being  fully  advised  in  the  premises, 
are  of  opinion,  that  the  said  plea  and  the  matters  therein  contained, 
are  sufficient  in  law  to  bar  the  said  A.  B.  from  his  action  against 
the  saidC.  D.  (a)  Therefore,  it  is  considered,  &c.  [^Conclude  as 
in  No.  15.] 


No.  22.     Judgment  for  defendant  on 
demurrer  to  declaration. 


In  assumpsit. 


This  cause  came  on  to  be  heard  upon  the 
demurrer  of  the  said  C.  D.  to  the  declaration  of  the  said  A.  B.  and 
was  argued  hy  counsel,  and  the  Court  being  fully  advised  in  the 
premises,  are  of  opinion  that  the  said  declaration  and  the  matters 
therein  contained,  are  not  sufficient  in  law  to  maintain  tiic  action 


(o)  If  the  plainfifi"  obtains  leave  to  withdraw  liis  dciniirror,  and  reply; 
instead  of  enterinjr  up  final  jiuli,nnent,  say,  "and  tiicroupoii  tlie  said  A.  IJ. 
moves  the  Court  for  leave  to  withdraw  said  demurrer,  and  reply  to  said  plea, 
"which  is  granted  on  payment  of  coats  since  filing  said  demurrer."     See, 


70  ASSUMPSIT. 

of  the  said  A.  B.  against  the  said  C.  D.  (b)  Therefore,  it  is  consid- 
ered, &c.     [Conclude  as  in  No.  15.1 


No.  23.     Judgment  for  defendant 
on  Plea  of  Nul  tiel  record. 

A.  B.    ) 

vs.       >    In  assumpsit. 
C.  D.    ) 

This  day  came  the  parties  by  their  attornies, 
and  the  said  A.  B.  hath  not  here  in  Court  the  record  of  the  supposed 
recovery  in  the  declaration  mentioned,  but  makes  default  in  pro- 
ducing the  same;  Therefore,  &c.  \_Conclude  as  in  No.  15. 


No.  24.     Judgment  for  defendant 
on  non-asswnjjsit. 


In  assumpsit. 


This  day  came  the  parties  by  their  attornies, 
and  thereupon  came  a  jury,  to  wit,  E.  F.  &c.  who  being  empan- 
nelled  and  sworn  the  truth  to  speak  upon  the  issue  joined  between 
the  parties,  upon  their  oaths  do  say,  that  the  said  C.  D.  did  not 
assume  and  promise  in  manner  and  form  as  the  said  A.  B.  hath 
complained  against  him:  Therefore,  &c.  [Conclude  as  in  No.  15.] 

No.  25.  Judgment  for  defendant 
on  demurrer  to  evidence. 

[Enter  the  verdict  and  proceed  thus :  This 
cause  came  on  to  be  heard  upon  the  demurrer  of  the  defendant  to 
the  evidence  of  the  plaintiff,  ajid  wus  argued  hy  counsel,  and  the 


(6)  Leave  to  amend  the  declaration  will,  in  general,  be  given  if  requested. 
In  such  case,  instead  of  entering  up  final  judgment,  say,  "and  thereupon 
the  said  A.  B.  moves  the  Court  for  leave  to  amend  his  declaration,  which 
is  granted  on  payment  of  costs  since  filing  said  demurrer."  See,  Ante. 
Ab.  3.  J^ote  (a). 


ASSUMPSIT.  71 

Court  being  fully  advised  in  the  pt-emises,  are  of  opinion  that  the 
matter  aforesaid  shown  in  evidence  to  the  said  jury,  in  form  afore- 
said, is  not  sufficient  in  law  to  maintain  the  issue  joined  between 
the  parties  :  Therefore  &c.  \_Conclude  as  in  No.  15.]  See,  Demur- 
rer to  evidence, page  49. 


No.  2G.     Judgment  for  defendant  on  notice 
of  set-off,  balance  found  for  defendant. 

[Enter  the  Verdict,  No.  1 6,  j)age  53,  and 
proceed  thus :  "Therefore,  it  is  considered  that  the  said  C.  D. 
recover  of  the  said  A.  B.  the  said  sum  of  500  dollars,  the  balance 
aforesaid,  by  the  jury  aforesaid  found  due  to  him,  and  also  his  costs 
in  this  behalf  expended,  taxed  to dollars."  See,  No.  3,  note  (b). 


72  ASSUMPSIT. 


Complete  Record. 

It  is  the  duty  of  every  Clerk,  in  vacation,  to  malve  a  complete 
record  of  the  writ,  recognizance  of  bail,  pleadings,  orders  and  judg- 
ments, in  each  cause  finally  determined  at  the  proceeding  term,  in  a 
book,  to  be  prepared  for  that  purpose;  which  record  must  be  signed 
by  the  President  or  Presiding  Judge  of  such  Court,  at  the  next 
succeeding  term.  Stat.  Vol.  39.  p.  70.  §  101.  This  record  may 
be  in  the  form  following : 

Pleas  before  the  Supi-eme  Court,  within,  and  for  the  The  State  of 
County  of  i?055,  and  State  of  Ohio,  on^the  tenth  day  of  Okio:Koss 
June,  [date  of  final  judgmentl  in  the;  year  of  our  Lord  "' 

one  thousand  eight  hundred  and  thirty  two. 

Be  it  remembered  that,  heretofore,  to  wit, 
on  the  fust  day  of  August,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  thirty  one,  A.  B.  sued  out 
of  the  Clerks  office  of  the  Court  aforesaid,  the  following 
writ  of  capias  ad  respondendum,  against  C.  D.  to  wdt, 
[Seal.]  The  State  of  Ohio,  Ross  County,  ss.^  To  the  Capias  ad 
Sheriffof  said  County;  Greeting.  We  command  you  ^'^^^^^^^^'^^" 
to  take  C.  D.  if  he  may  be  found  in  your  bailiwick,  and 
him  safely  keep,  so  that  you  have  his  body  before  our 
Supreyne  Court,  of  the  County  aforesaid,  at  the  Court 
House  in  said  County,  on  the  first  day  of  their  next 
Term,  to  answer  unto  A.  B.  in  a  plea  of  assumpsit : 
Damages,  1000  Dollars,  and  have  you  then  there  this 
writ.  Witness,  T.  T.  Chief  Judge  of  our  Supreme  Court 
aforesaid  ihxs  first  day  o^  August  K.  D.  1831.  Attest, 
F.  C.  Clerk.  Upon  which  writ  was  the  following  en-  Endorsc- 
dorsement,  to  wit.  Suit  brought  on  note  given  by  deft.  ment. 
to  pltff.  for  800  Dollars,  dated  June  1,  1831,  also 
for  goods  sold  and  delivered,  money  had  and  received 
&LC.  damages  1000  Dollars.  Sheriff  will  hold  to  bail  in 
2000  Dollars.  X.  Y.  Atty.  for  Plaintiff.  And  afterward? 


ASSUMPSIT. 


73 


to  wit,  on  the  sixth  day  of  October  in  tiie  year  last  afore- 
said, the  said  writ  was  returned  to  the  Court  aforesaid  by 
said  Sheriff,  endorsed  as  fohows,  to  wit,  I  have  taken  the 
body.  S.  W.  Sheriffof  i?oss  County.  And  afterwards,  to 
wit,  on  the  day  and  year  last  aforesaid,  the  following  re- 
cognizance of  special  bail  was  entered  into,  to  wit,  The 
State  of  Ohio,  Ross  County,  ss.  Be  it  remembered, 
that  on  tliis  sixth  day  of  October  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  thirty  one,  G.  H.  and 
E.  F.  of  the  County  of  Ross  personally  appeared  before 
J.  R.  Clerk  of  the  Supreme  Court  of  the  County  of 
Ross  and  severally  acknowledged  themselves  to  owe 
unto  the  said  A.  B.  the  sum  of  two  thousand  dollars  to 
be  levied  on  their  several  goods  and  chattels,  lands, 
tenements  and  estates;  upon  condition,  that  if  the  said 
defendant  C.  D.  shall  be  condemned  in  this  action  at 
the  suit  of  the  said  A.  B.  he  shall  pay  the  costs  and 
condemnation  of  the  Court,  or  be  rendered,  or  render 
liimsclf,  into  the  custody  of  the  Sheriff  of  said  County, 
for  the  same,  or  in  case  of  failure,  that  the  said  G.  H. 
and  E.  F.  will  pay  the  costs  and  condemnation  for 
him.  Taken  and  acknowledged,  the  day  and  year 
above  written  before  me,  J.  R.  And  afterwards,  to 
wit,  on  the  same  day  and  year  last  aforesaid,  on  motion 
of  the  said  A.  B.  this  cause  w^as  continued  until  the 
next  term  of  tliis  Court.  And  afterwards,  to  wit,  on 
the  second  day  of  March,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  thirty  two,  the  said  A.  B» 
filed  in  the  Clerks  ofiice  aforesaid,  the  following  declar- 
ation, to  wit,  Ross  County,  ss.  Supreme  Court.  Octo- 
ber Term,  A.  D.  1831,  A.  B.  complains  of  C.  D.  in  a 
plea  of  assumpsit,  for  that  whereas  the  said  C.  D.  on 
the  first  day  of  June,  in  the  year  of  our  Lord  one  thou- 
sand eight  hundred  and  thirty  one,  at  the  County  of 
Ross  aforesaid  made  his  promissory  note  in  writing, 
and  delivered  the  same  to  the  said  A.  B.  and  thereby 
promised  to  pay  to  the  said  A.  B.  or  order,  eight  hun- 
dred dollars  in  thirty  days  after  the  date  thereof,  which 
K 


Sherifs 
Return. 


Recogni- 
zance of 
Speciat 
Bail. 


Continu- 
ance. 

Declara 

tion. 


Special 
Count. 


74 


ASSUMP>SIT. 


period  has  now  elapsed,  and  tlic  said  C.  D.  then  and 
there  in  consideration  of  the  premises,  promised  to  pay 
the  amount  of  tlie  said  note  to  the  said  A.  B.  according 
to  the  tenor  and  effect  thereof:  And  also  for  that 
whereas  the  said  C.  D.  on  the  tenth  day  of  July,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  thirty 
one,  was  indebted  to  the  said  A.  B.  in  one  hundred 
dollars  for  the  price  and  value  of  goods,  then  and  there 
bargained  and  sold  by  the  said  A.  B.  to  the  said  C.  D. 
at  his  request :  And  in  one  hundred  dollars  for  money 
then  and  there  lent  by  the  said  A.  B.  to  the  said  C.  D. 
at  liis  request :  And  whereas  the  said  C.  D.  afterwards, 
to  wit,  on  the  twentieth  day  of  July,  in  the  year  last 
aforesaid  in  consideration  of  the  premises,  then  and 
there  promised  to  pay  the  said  last-mentioned  several 
sums  of  money  to  the  said  A.  B.  on  request:  Yet  he 
hath  disregarded  his  promises,  and  hath  not  paid  the 
said  several  sums  of  money,  nor  either  of  them  nor 
any'^part  thereof:  To  the  damage  of  the  said  A.  B. 
1000  Dollars,  and  thereupon  he  brings  suit,  &c.  By  T. 
S.  his  attorney.  And  afterwards,  to  wit,  on  Xhe  fourth 
day  of  May,  in  the  year  last  aforesaid,  the  said  C.  D. 
filed  in  the  Clerk's  office  aforesaid  the  follov/ing  plea, 
to  wit,  C.  D.  ads.  A.  B.  Ross  Supreme  Court.  And 
the  said  C.  D,  comes  and  deiends,  &c.  and  says  that  he 
did  not  assume  and  promise  in  manner  and  form  as  the 
said  A.  B.  hath  declared  against  him,  and  of  this  he  puts 
himself  upon  the  country ;  and  the  said  A.  B.  doth  the 
like.  And  afterwards,  to  wit,  on  the  day  and  year 
first  aforesaid,  to  wit,  on  the  tenth  day  of  Jimc,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  thirty 
two,  before  the  Supreme  Court  aforesaid,  came  as  well 
the  said  A.  B,  as  the  said  C.  D.  by  their  attornies  afore^ 
said,  and  thereupon  came  a  Jury,  to  wit,  E.  F.  &c. 
who  being  empannelled  and  sworn  the  truth  to  speak 
upon  the  issue  joined  betv/een  the  parties  aforesaid,  upon 
their  oaths  did  say,  that  the  said  C.  D.  did  assume  and 
promise  in  fnanner  and  form  as  the   said  A.  B.  had 


Common 
Counts. 


Plea. 

General 

issue. 


Verdict. 


ASSUMPSIT.  '    75 

complained  against  him,  and  they  assessed  the  damages 
of  the  said  A.  B.  by  reason  thereof,  to  seven  hundred 
dollars  :  Thereupon  it  was  considered  that  the  said  A.  Judgment. 
B.  recover  of  the  said  C.  D.  the  said  sum  of  seven  hun- 
dred dollars,  his  damages  aforesaid,  in  form  aforesaid 
assessed,  and  also  his  costs  in  that  behalf  expended, 
taxec^to  ten  Dollars,  {n). 

The  Statute  of  the  United  States,  passed  May  26th,  1790,  pro- 
vides, "that  the  records  and  judicial  proceedings  of  the  Courts  of 
any  State  shall  be  proved  or  admitted  in  any  other  Court  withm  the 
United  States,  by  the  attestation  of  the  Clerk,  and  the  seal  of  the 
Court  annexed,  if  there  be  a  seal,  together  with  a  certificate  of  the 
judge,  chief  justice,  or  presiding  magistrate,  as  the  case  may  be, 
that  the  said  attestation  is  in  due  form."  By  the  Second  Section 
of  a  supplementary  Statute,  passed  March  27th,  1804,  all  the  pro- 
visions of  the  Statute  of  1790,  are  made  to  "apply  as  well  to  the 
public  acts,  records,  judicial  proceedings,  and  Courts  of  the  rcspec- 


(a)  This  form  is  proper  for  records  in  the  Supreme  Court,  in  all  cases 
which  arc  origiiiiilly  broii'jfhl  in  that  Court;  but  where  a  cause  is  taken  by 
appeal  from  the  Court  of  Common  Pleiis,  after  stating  the  placitaas  in  the 
above  precedent,  proceed   thus  ;     "He  it  remembered  that,  heretofore,  to 

"wit,  on A.  B.  or  C  D.  [Ihc  uppcllani]  deposited  in  the  Clerk's  Office 

"of  the  Supreme  Court  of  the  State  of  Ohio,  within  and  for  the  said  County 

"of the   orijjinal  papers  and  pleadings  in  a  certain  cause  then  lately 

"pending  in   the  Court  of  Common  Pleas  within  and  for  the  said  County  of 

" wherein  the  said  A.  iJ.  was  plaintiff  and  the  sv.id  C.  D.  was  defond- 

"ant.  (and  which  cause  had  been  duly  appealed  by  the  said  A  .  B.  or  C.  D.  to 
"tl.e  Supreme  Court  aforesaid,)  together  with  an  authenticated  transcript 
"of  the  journal  entries  andof  ihe  tinal  judgment,  made  and  rendered  in  said 
"cause  by  ilie  Court  of  (Jominon  i'leas  aforesaid,  and  which  original  papers, 
"pleadings  and  transcript  are  in  the  words  and  Dgurcs  following,  to  wit," 
\  Hrre  set  out,  vcrbatini,  the  original  writ  and  cndorse.incnls,  iJcclaraiion, 
i^lca,  t-Vc.  loitk  the  orders  of  Court  and  Judgment,  as  atalcd  in  the  transcript 

and  then  proceed  thu;;    "And  afterwards,  to  wit,  on &c."  [Here  state 

the  proceedings,  and  final  Judgment  iii  the  ISupreme  Court,  in  the  same 
manner,  as  if  the  suit  had  been  originalhj  brougfit  in  that  Cou7't.']  See,  Jlp- 
■jieal. 

It  has  been  questioned,  whether  the  complete  record  after  it  has  been 
signed  by  the  proper  Judge,  can  under  any  circiimstunces  be  atnended.  In 
the  case  of  Young  vs.  'J'he  State  of  Ohio  on  error  in  the  Supreme  Court  of 
Franklin  County,  December  'rani,  I'ilili,  upon  an  application  for  a  certior- 
ari vn  suggestion  of  diminution  of  record,  Chief  Justice  HrrcncocK,  ex- 
pressed an  opinion,  cxlrajudiciatlij,  that  a  clerical  mistake,  in  making  up 
the  complete  record,  might  be  corrected  (fer  it  had  been  signed  by  t!jo 
Judge;  but  it  is  not  known  that  the  qucrtion  has  ever  hesn  j ud icial 1 1/  settled. 
See;  5  Ohio  Rep.  27(3.  337. 


76  ASSUMPSIT. 

tive  territories  of  the   United  States,  and  countries  suhject  to  the 
jurisdiction  of  the  United  States,  as  to  the  pubUc  acts,  &c.  of  the 
several  States."     The  attestation  and  certificate  under  the  act  of 
1790,  may  be  thus:  [7  Cranch.  408.] 

FoR3i  OF  Attestation  and  Certificate. 

The  State  o^^Ohio  ) 

FranMin  County,  ss.    \      I  hereby  certify, 
that  the  foregoing  is  truly  taken  and  copied 
[Seal.}  from  the  Records  of  the  proceedings  of  the 

Court  of  Common  Pleas,  within  and  for  the 
said  County  of  Franklin. 
In  testimony  whereof  I  do  hereto  subscribe  my  name  and 

affix  the  seal  of  said  Court,  this day  of A.  D. 

J.  S.  Clk. 

I,  A.  B.  President  Judge  of  the  Court  of  Common  Pleas,  within, 
and  for  the  County  of  Franklin  and  State  of  Ohio,  do  hereby  certify, 
that  J.  S.  is  Clerk  of  said  Court,  and  that  Iiis  attestation  aforesaid 
is  in  due  form  of  law,  and  that  to  all  acts  by  him  so  done,  full  faith 
and  credit  are  and  ought  to  be  given  in  judicature  and  thereout. 
[^This  certificate  is  unnecessary  when  the  record  is  to  be  used  in  the 
Courts  oj  the  same  State. 

Dated,  &c.  A.  B. 


Under  the  Statute  of  1790,  the  Supreme  Court  of  the  United 
States  have  decided,  that  a  copy  certified  by  the  Clerk,  without  a 
certificate  of  the  presiding  judge  that  the  attestation  is  in  due  form, 
is  not  admissible  evidence,  in  the  Courts  of  another  State  or  District. 
9  Cranch,  122.  It  had  been  previously  held,  in  Pennsylvania,  that 
a  copy  not  certified  according  to  the  Statute  was  prima  facie  evi- 
dence, but  not  conclusive.  2  Yeates.  532.  And  in  North  Carolina, 
that  the  Statute  was  only  affirmative,  and  did  not  abolish  all  other 
modes  of  authentication.  1  Hayw.  359. 

A  record  of  another  vState,  informally  certified,  cannot  be  read 
even  on  a  question  of  discharging  common  bail.  1  Pet.  Rep.  352. 
To  make  a  record  of  a  Court  of  one  State,  evidence  in  another,  the 


ASSUMPSIT.  77 

attestation  must  be  according  to  the  form  used  in  the  State  from 
which  the  record  comes;  and  the  only  evidence  of  this  fact  is  the 
certificate  of  the  presiding  judge  of  that  Court.  Ibid.  1  Johns.  Cas. 
238.  A  certificate  of  a  presiding  judge,  stating  tliat  the  person, 
whose  name  is  signed  to  the  attestation  of  the  record,  is  Clerk,  and 
that  the  signature  is  his  hand  writing,  is  not  in  conformity  with  tlie 
requirements  of  the  Statute.  1  Pet.  Rep.  352.  Wherever  tiic 
Court,  whose  record  is  certified,  has  no  seal,  this  fact  should  a})pear, 
either  in  the  certificate  of  the  Clerk,  or  in  that  of  the  Judge.  Ibid. 
See,  also  1  Hayw.  395.  The  attestation  by  the  Clerk,  of  the 
record  of  a  judgment  in  another  State,  must  have  the  seal  of  the 
Court  annexed  to  it,  and  it  is  not  sufficient  that  such  seal  is  annexed 
to  the  certificate  of  the  Judge.  IVhartons  Dig.  22  4.  A  record  of 
another  State,  attested  by  the  Clerk,  with  the  seal  of  the  Court 
annexed,  and  the  certificate  of  two  judges,  stating  it  to  be  in  due 
form,  one  of  them  stating  himself  to  be  the  judge  "that  presided, 
and  oneof  the  judges  of  the  superior  Courts  of  law  of  said  State;" 
and  the  other  stating  liimself  to  be  "the  senior  judge  rifthe  Courts 
oflawof  said  State" was  held  to  be  an  insufficient  authentica- 
tion.    3  Bibb.  369. 


In  those  States  where  a  Justice  of  the  peace  holds  a  Court  of 
record ;  when  he  is  the  sole  Justice  and  has  no  Clerk,  he  may  cer- 
tify that  he  is  the  presiding  magistrate  and  Clerk  of  the  Court,  that 
there  is  no  seal,  and  that  the  attestation  is  in  the  usual  form  ;  and  a 
copy  of  the  record  thus  certified  is  admissible  in  evidence.  But  a 
copy  of  the  record  of  a  judgment  rendered  by  a  justice  in  another 
State,  authenticated  only  by  his  certificate,  stating  that  it  is  a  true 
copy  of  the  file  and  records  remaining  in  his  office,  is  not  sufficiently 
proved,  either  at  common  law,  or  according  to  the  Statute  of  the 
United  States.     5  Day.  363. 

A  decree  in  Chancery  must  be  authenticated  according  to  the 
Statute  of  1790.     2  J\Iarsh.  293. 

A  record  of  a  Court  of  the  United  States  is  not  within  the  Statute 
of  1790;  and  if  under  the  seal  of  the  Court,  and  certified  by  the 
Clerk  as  a  copy,  is  evidence  in  the  State  Courts,  without  a  ccrtifi- 


78  ASSUMPSIT. 

catc  of  the  presiding  judge.  2  Johns.  Cas.  119.  So  the  record 
of  a  Court  of  a  Territory  was  held,  in  Kentucky,  not  to  be  within 
the  provision  of  the  Constitution  and  Statute.    2  Bibb.  334. 

By  immemorial  usage,  also  in  Massachusetts,  a  copy  of  the 
records  of  the  Courts  of  their  own  State,  attested  by  the  Clerk,  is 
admissible  in  evidence.  4  Mass.  402.  This  is  also  the  com- 
mon practice  in  Ohio.  See,  also  2  Johns.  Cas.  119.  Col.  and 
Caines'  Cas.  130.  In  South  Carolina,  by  a  Statute  passed  more 
than  a  century  since,  attested  copies  of  all  records,  certified  by  the 
Clerk  of  the  Court,  are  admissible  in  evidence.  2  J\ott  Sf  McCord. 
299.   1  Starkie's  Ev.  151.  3. 


Judgements  regularly  obtained  in  other  States,  against  defend- 
ants who  have  been  served  with  process,  or  have  appeared  and  had 
an  opportunity  of  making  a  defence,  are  to  be  received  as  conclu- 
sive evidence,  and  no  re-examination  of  the  grounds  on  which  they 
are  rendered  can  be  permitted,  but  where  the  defendant  has  not 
been  served  with  process,  or  not  had  an  opportunity  of  making  a 
defence,  it  seems  the  record  is  to  be  considered  only  prima  facie 
evidence,  and  may  be  impeached.  1  Ohio  Rep.  257.  Ohio  Conds. 
123.  See,  3  Wheat.  234.  7  C ranch.  431.  9  Mass.  462. 
4  Cranch.  442.     6  Wheat.  129.     1  Dallas.  261.      15  Johns.  121. 


DEBT.  79 


Debt. 


The  action  of  Debt  is,  in  general,  commenced  by  summons  or 
capias  ad  respondendum. 

1.  Summons. 

The  smnmons  is  issued,  as  a  matter  of  course,  upon  filing  a  Prae- 
cipe with  the  Clerk  of  the  proper  Court,  [See,  ante,  7.  note  (a)] 


Praecipe  for  Summons  in  debt. 
A.  B 

c.  b.  S 


.  B.    ^ 

vs.       >    In  Debt  —  Debt  —  dollars  —  Damages  —  dollars,  (a) 


Issue  a  summons  returnable  [  forZ/i?/;?'///,  if  in 
term  time,  or  at  next  term,  if  in  vacation^  Indorse,  "Suit  brot 
on  single  bill  under  seal  given  by  deft,  to  pltff.  for  —  dollars,  dated, 
&c.     Also  for  goods  sold,  &c."     See,  ante.  8.  note  (a). 

T.  S.  Atty.  for  PItif. 
To  the  Clerk  of Com.  Pleas,  or  Sup.  Court. 

Writ  of  Summons. 

The  vState  of  Ohio County,  ss. 

To  the  ShcriU'of  said  County :  Greeting. 
We  command  you  to  summon  C.  D.  to  appear  before,   our 
Supreme  Court^  or  Court  of  Common  Pleas,  of  the  County  afore- 
said, at  the  Court  House  in  said  County,  forthwith  [if  in  Icnntime] 
or,  on  the  first  day  of  ihcir  next  term  [if  in  vacation']   to  answer 


(a)  This  action  bein^  for  the  recovery  of  a  debt,  ro  nomine,  and  inmnncro, 
damages  tliougli  awarded  for  tlic  detention  of  tlie  debt,  are,  in  most  instan- 
ces, merely  nominal  :  Ske,  1  Chit.  pi.  97.  4  Edit,  and  the  Jury  first  find  tiie 
matter  of  the  issue,  at.-  ui)oti  ;(//  dchet;  that  the  defendant  owes  to  tiic  plain- 
tiff the  amount  of  the  debt  proved;  upon  non  r.st/dctuui;  thatthe  bond  is  the 
deed  of  the  defendant,  and  then  liiey  assess  the  damages,  which  arc  in  gen- 
eral nominal.     VII.  Pefcrsd.  Ab.  525. 


eo  DEBT. 

unto  A.  B.  in  a  plea  of  debt  for dollars Damages 

dollars;  and  have  you  then  there  this  writ.  (a). 

Witness,  T.  T.  Chief  Judge  of  our  Supreme  Court,  or,  President 

Judge  (four  Court  of  Common  Pleas,  aforesaid,  this day  of 

A.  D. 

Attest.  F.  C.  Clerk. 

For  the  Forms  of  an  Mias,  Pluries  and  Testatum  Summons,  See, 
Ante,  9. 


II.  Capias  ad  respondendum. 

When  a  capias  may  be  sued  out.  See,  Jlnte.  10. 

PRiEciPE  FOR  Capias. 

A.  B.     ) 

vs.      >    In  Debt  —  Debt  —  dollars  —  Damages  —  dollars. 
C.  D.    ) 

Issue  a  capias  ad  respondendum  returnable  forth- 
with [if  in  term  time']  or,  at  the  next  term  [if  in  vacation']   Indorse 

"Suit  brot   on  single  bill  under  seal  given  by  deft,  to  pltti'.  for 

dollars,  dated,  &c.  and  also  for  goods,  sold,  &c."     See,  Ante,  8. 
note  (a). 

Hold  to  bail  in  the  sum  of dollars,  [double  the  amount  due  or 

sworn  to.] 

To  the  Clerk  of Co?7i.  Pleas  or,  Sup.  Court. 

Dated,  &c.  T.  S.  ./3«2/.  for  pltfF. 

For  the  Form  of  Affidavits,  and  Judge's  order  to  hold  to  Bail, 
SEE,.5n/e,  11.  12. 

(a)  For  the  proper  endorsements  to  be  made  upon  this  writ.  See,  ante,  8. 


DEBT.  81 

Writ  of  capias  ad  respondendum. 

The  State  of  Ohio County,  ss. 

To  the  Sheriff  of  said  County:  Greeting. 
We  command  you  to  take  C.  D.  if  he  may  be  found  in  your  baiU- 
wick,  and  him  safely  keep,  so  that  you  have  his  body  before  our 
Supreme  Court  or,  Court  of  Common  Pleas,  of  the  County  aforesaid, 
at  the  Court  House  in  said  County,  fortlnoHh,  or,  on  the  first  day  of 
their  next  term,  to  answer  unto  A.  B.  in  a  plea  of  Debt  for dol- 
lars   Damages dollars  ;  and  have  you  then   there   this 

writ. 

Witness,  T.  T.  Chief  Judge  of  our  Supreme  Court,  or.  President 

Judge  of  our  Court  of  Common  PleaSj  aforesaid,  this day  of 

A.D. 

Attest.  F.  C.  Clerk. 

For  the  proper  endorsements  to  be  made  upon  this  writ,  the 
^orms,  of  an  Jllias,  Pluries,  and  Testatum  capias,  Bail  Bond  to  the 
Sheriff,  Recognizance  of  Special  Bail,  Bail  piece,  and  Appearance 
of  Defendant,  See,  Ante  from  13  fo  18. 
L 


82  DEBT. 


Dr 


CLARATIONS. 


For  general  principles  in  relation  to  Declarations,  See,  Decla- 
rations in  Assumpsit,  Ante.  20. 


No.   1.     On  Single  Bill,  or  Promis- 
sory Note,  under  seal. 

f  Supreme  Court,  or  Court  of  Common  Pleas 

I Term.     [^The  term  to  which  the  wi  it  was 

County,  ss.    <(  returned,  or,  the  term  at  which  the  cause  was 

brought  into   Court,  by  appeal  or  certiorarifl 

A.  D. 


A.  B.  complains  of  C.  D.   (a)   in  a  plea  of  debt,   (b)  for  that 

whereas  *  the  said  C.  D.  on at made  his  certain  writing 

obligatoiy  of  that  date,  sealed  with  his  seal  (and  now  to  the  Court 


(a)  See,  Anle.  21,  Js'ute,  (a). 

(i)  It  will  be  observed,  ihat  in  this  precedent,  the  English  form  of  the 
commencement,  is  entirely  omitted.  That  form  runs  thus  :  "A.  B.  com- 
plains of  C.  D.  being,  &c.  of  a  plea  that  he  render  to  the  said  A.  B.  the  sum 

of dollars  lavvtui  money,  &c.  which  he  owes  to,   and  unjustly  detuins 

from  the  said  C.  D.  for  that  whereas,  cic."  The  old  puthorities  required 
the  blank  in  the  commencement  to  be  filled  with  the  aggregate  of  all  the  sums 
contained  in  the  several  counts  ;  and  it  was  accordingly  held  ihat  the  plain- 
tiff could  neither  prove  or  recover  a  less  sum  than  that  demanded  in  the 
commencement  of  his  declaration.  The  same  principle  was  originally  ex- 
tended to  the  action  of  Assumpsit.  Thus  where  the  plaintitf  declared  in 
■indebltcJui  as<fnmpsit,  for  5U/.  and  the  jury  found  a  verdict  in  his  favor  for 
47/.  Judgment  vv^as  given  for  the  defendant,  "because  it  was  found  that  he 
did  assmne  only  for  part,  and  so  the  same  assumpsit  was  not  found,  that 
the  plaintiff  did  declare  upon."      Cro.  Eliz.  'Z\)2.    Bac.  Abg.  Td.  Verdict. 

This  doctrine  no  longer  prevails  in  England,  either  in  Assumpsit  or  Debt ; 
and  it  is  now  held  that  the  plaintiff  may  recover  any  sum  more  or  less  than 
that  demanded  in  the  commencement  of  the  declaration.  11  East.  62.  1  Samid, 
288.  n.  1.  1  H.  B.  251.  2  Chit.  pi.  179.  The  case  in  11  East.  62.  ren- 
ders wholly  unnecessary,  the  demand  of  any  sum  whatever  in  the  covimence- 
ment  of  the  declaration.  The  plaintifl"  declared  against  the  defendant  oj  a 
plea,  thai  he  render  to  him  the  sum  of  7750/.  which  he  owes  to  and  ur  justly 
detains  from  him,  &c.  In  the  first  count  the  Plaintifl' set  out  a  bond,  secu- 
ring the  payment  of  1625Z.  and  interest,  and  concluded  that  count  with  the 
common  averment,  that  the  1625/.  teas  parcel  of  the  7750Z.  above  demanded. 
He  then  added  five  other  counts  for  goods  sold,  &;c.,  in  each  of  which  ho 
claimed   1625/.  a^s  parcel  anA  residue  "of  the  said  sum  of  7750/.  above  de- 


DEBT.  83 

here  shown)  («),  and  then  and  there  dehvcrcd  the  same  to  the  said 
A.  B.  and  thereby  bound  himself  to  pay  to  tiie  said  A.  B.  or  order 

dollars  in days  after  the  date  thereof;  which  period  has 

now  elapsed  :  Yet  the  said  C.  D.  hath  not  paid  the  said  sum  of  mo- 
ney, nor  any  part  thereof:  To  the  damage  of  the  said  A.  B. 

dollars,  [the  amount  stated  in  the  loritl  and  thereupon  he  brings 
suit,  &CC. 

By  T.  his  atty. 
[Add  the  common  counts  as  in  Assximpsit,  Ante.  29.  in  ichich 
case  the  conclusion  ivillbe  thus :  "■Yet  the  said  C.  D.  hath  7iot paid 
the  said  sevei^al  sums  of  monoj,  or  either  of  them,  nor  any  part 
thereof  ^^c"] 


manded."  The  aggregate  of  all  the  sums  mentioned  in  each  count,  was 
9ti50/.  being  21)00/.  more  than  tlie  sum  doinunded  in  the  com/iiencemeiit  of 
the  declaration.  The  defendant  demurred  syjccvf/Z/y  fur  this  cause,  and  Lord 
ELLK.NBouoL'cni  iu  gi ving  judgment  inr  the  plainiiif,  says,  "That  the  words 
at  the  beginning,  of  a  ijlta  llmt  he  render  so  much,  wliich  raise  tlie  ques- 
tion, are  tiieiuselves  su[)i'riiui)us,  and  may  tiierefore  be  rejected  ;  and  reject- 
ing those  words,  there  is  in  each  count  a  i)erfect  demand  of  a  sum  certain, 
without  reference  to  the  sum  first  mentioned  in  the  declaration,  which 
would  also  be  n-jei  teil  :  und  then  the  declaiation,  concluding  with  a  demand 
of  damages  for  retaining  tiie  debt,  will  refer  to  the  sum  total  of  the  debt  de- 
manded by  the  sever.ii  counts-" 

It  was  also  formerly  a  matter  of  enquiry,  in  England,  under  what  cir- 
cumstances, the  declaration  should  be  in  tlie  Debet  and  Delinet,  or  in  the 
i)elinet  only.  No  good  reason  is  assigned  for  this  distinction,  or,  at  least, 
for  its  continuance  ;  and  the  case  above  cited  I'rom  East,  seems,  in  the 
opinion  of  Chil/i/,  to  warrant  its  discontiimancc.  2  Chit.  pi.  179.  n.  [b). 
Before  tlie  action  of  fJcliuue  was  inticduced  into  lie  Engiisn  law,  tL?  ac- 
tion of  IJefjt  was  jiroseculed  to  reco\  cr  apccijlc  chullels,  as  well  as  money ; 
and  it  was  then  held,  that  the  dernand  for  challels  must  be  I-.p'J  in  tnc  Deli- 
M(.t  and  the  demand  for  the  money  in  the  DcLel  only.  Eoth  dema.ids  were 
often  included  in  the  same  wtit,  but  the  distinction  was  maintained.  The 
form  of  the  writ  is  fuun'^  in  2  Reeves'  Com,  Law,  o'-A).  Prcccifc  A.  quod 
juste  et  sine  dilatioue  rcddat  B.  201.  i\U(ii:.\Ti  quus  ci  d'CBI^t,  cl  dimidiuni 
s.ACCi  LAN.i:  quod  ci  iiijusle  umiyi^i.  Tlie  action  ni'  JJebt  was  afterwards 
divided,  and  J)ctinuc  became  the  common  rciiu.'dy  for  the  recovery  of 
r/ialli'ls.  Ill  England,  at  ihepresent  day,  the  distinction  is  rarely  noticed, 
except  perhaps  in  cases  of  executors  or  administrators;  and  under  our  sta- 
tute, defining  the  duty  of  executors  and  administrators,  it  can  have  no  ap- 
plication. The  dibtiiicticn  is  not  regarded  in  .^IassacllUsctts.  5  Danes, 
Ab'-.  IU2. 

(a)  If  a  bond  or  oihcr  deed  be  pleaded  with  a  profert,  and  the  defendant 
plead  noa  est  furlu/n,  and  the  plaintiif  cannot  produce  the  bond,  iVo.  at  the 
trial,  he  will  bo  nonsuited,  4  Kusl  T^^'y,  2  t'hil.  pi.  191  AVhore  itisoute-f 
tlu)  power  of  the  purty  to  make  prolt-rt,  he  must  allege  the  iiroper  excuse, 
which  must  be  framed  to  n;eet  the  stale  of  facts.  It  is  in  general  advisable 
to  add  a  second  count,  contaiiiini;  feuch  e.\cuse.  If  the  bond  be  lost,  say  "and 
wiiich  said   writing  obligatory   having  been  lost,"  or  "destroyed  by  acci- 


84  DEBT. 

No.  2.     Onhond  for  the  payment  of  money. 

[Proceed  as  in  No.  I.  to  the  *  —  the 

said  C.  D.  on at made  his  certain  writing  obligatory  of 

that  date,  sealed  with  his  seal  (and  now  to  the  court  here  shown,) 
and  then  and  there  delivered  the  same  to  the  said  A.  B.  and  there- 
by acknowledged  himself  to  be  bound  to  the  said  A.  B.  in  the  sum 
of —  dollars,  to  be  paid  to  the  said  A.  B.  on  demand;  yet  the  said 
C.  D.  hath  not  paid  the  said  sum  of  money,  nor  any  part  thereof: 
To  the  damage,  &c.  [Conclude  as  in  No.  1.] 

No.  3.     On  a  hond  without  date. 

[Proceed  as  in  No.  1.  to  the  * the  said 

C.  D.  by  his  certain  writing  obligatory,  sealed  with  his  seal,  and  as 

the  deed  of  the  said  C.  D  on at delivered  to  the  said  A. 

B.  (and  now  to  the  Court  here  shown,)  acknowledged  him- 
self to  be  bound  to  the   said  A.  B.  in  the  sum  of dollars; 

to  be  paid,  &c.  [Conclude  as  in  No.  1.] 

No.  4.     On  a  hond,  by  a  surviving  obligee. 

[Proceed  as  in  No.  1.  to  the  * the 

said  C.  D.  on at made  his  certain  writing  obligatory  of 

that  date,  sealed  with  his  seal  (and  now  to  the  Court  here  shown,) 
and  then  and  there  delivered  the  same  to  the  said  A.  B.  and  one  E. 
F.  now  deceased,  whom  the  said  A,  B.  hath  survived,  and  thereby 
acknowledged  himself  to  be  bound  to  the  said  A.  B.  and  E.  F.  in  the 

sum  of to  be  paid  to  the  said  A.  B.  and  the  said  E.  F.  or  either 

of  them,  when  thereto  requested  :  Yet  the  said  C.  D,  though  often 
requested,  hath  not  paid  the  same  nor  any  part  thereof  to  the  said 
A.  B.  or  to  the  said  E.  F.  or  either  of  them,  in  the  life  time  of  the 
said  E.  F.  or  to  the  said  A.  B.  since  the  death  of  the  said  E.  F.  To 
the  damage,  &c.  [Conclude  as  in  No.  1.] 


dent,"  or,  "by  fire,"  or,  "by  the  said  C.  D.  the  said  A.  B.  cannot  produce 
the  same  to  the  court  here."  See  \i  T.  R.  151.  If  the  bond  be  in  the  pos- 
session of  the  defendant,  say,  "and  which  said  writing  obligatory  being  in 
the  possession  of  the  said  C.  D.  the  said  A.  B.  cannot  produce,  &c."  It 
seems  to  be  sufficient  if"  the  excuse  be  true  at  the  tin  e  of  declaring:  and  if 
the  deed  be  afterwards  found,  it  may  be  given  in  evidence.  2  Comp.  5.'37. — 
Sbe,  Pleas  in  Bar,  in  Debt,  fost. 


DEBT.  86 


No.  5.     Bij  baron  and  feme,  on  bond  ) 
givento  feme  dum  sola.  ) 

\^Commence  as  in  No.  1. A.  B.  and 

E.  B.  his  wife  complain  of  C.  D.  in  a  plea  of  debt,  for  that  whereas 

the  said  C.  D.  on at made  his  certain  writing  obligatory 

of  that  date,  sealed  with  his  seal  (and  now  to  the  Com't  here  shown,) 
and  then  and  there  delivered  the  same  to  the  said  E.  B.  and  thereby- 
acknowledged  himself  to  be  bound  to  the  said  E.  B.  then  sole  and 

unmarried,  by  the  name  of  E,  S.  in  the  sum  of dollars;  to  bo 

paid  to  the  said  E.  B.  on  demand :  Yet  though  often  requested,  the 
said  C.  D.  hath  never  paid  the  same  or  any  part  thereof  to  the  said  E. 
B.  whilst  sole,  nor  to  the  said  A.  B.  and  E.  B.  or  either  of  them,  since 
their  intermarriage,     To  the  damage,  &c.  \_Conclude  as  in  No.  1.] 


No.  6.     Administrator  of  obligee 
against  obligor. 

[^Commence  as  in  No.  1. A.  B.  as  admin- 
istrator of  E.  F  deceased,  complains  of  C.  D.  in  a  plea  of  debt,  for 

that  whereas  the  said  C.  D.  on at made  his  certain  writing 

obligatory  of  that  date,  sealed  with  his  seal  (and  now  to  the  Court 
here  shown,)  and  then  and  there  delivered  the  same  to  the  said  E. 
F,  then  in  full  life,  and  thereby  acknowledged  himself  to  be  bound 

to  the  said  E.  F.  in  the  sum  of dollars;  to  be  paid  to  the  said 

E.  F.  on  demand:  Yet  the  said  C.  D.  though  often  requested,  hath 
never  paid  the  same  or  any  part  thereof,  to  the  said  E.  F.  in  his 
life  time  nor  to  the  said  A.  B.  as  his  administrator;  To  the  damage 

of  the  said  A.  B.  as  administrator  as  aforesaid dollars,  and 

thereupon  he  sues  &c.  And  the  said  A.  B.  brings  into  Court  here 
his  letters  of  administration  duly  granted  &c.  Seb,  Notes  to  No.  1. 


No.  7.     Obligee  against  admin- 
istrator of  obligor. 

[Comvjcncc  as  in  No.  1. A.  B.  com- 
plains of  C.  D.  as  administrator  of  E.  F.  in  a  plea  of  debt,  for  thnt 


83  DEBT. 

whereas  the  said  E.  F.  in  his  life  time,  to  wit,  on at 

made  his  certain  writing  obligatory  of  that  date,  sealed  with  his 
seal  (and  now  to  the  Court  here  shown)  and  then  and  there  deliver- 
ed the  same  to  the  said  A.  B.  and  thereby  acknowledged  himself  to 

beboimd  to  the  said  A.  B.in  the  sum  of dollars;  to  be  paid 

to  the  said  A.  B.  on  demand:  Yet  though  often  requested,  the  said 
E.  F.  in  his  life  time,  did  not  pay,  nor  hath  the  said  C.  D.  as  his 

administrator,  since  his  death,  paid  the  said  sum  of dollars,  or 

any  part  thereof:     To  the  damage,  &c.   [Conclude  as  in  No.  1.] 


No,  8.     On  bonds  sfafin^-  the  con-    ) 
ditions,  under  the  Statute.  ) 

[Proceed  as  in  No.  1.  to  the  * the  said 

C.  D.  on at made  his  certain  writing  obligatory,  sealed 

with  his  seal  (and  now  to  the  Court  here  shown)  and  then  and 
there  delivered  the  same  to  the  said  A.  B.  whereby  the  said  C.  D. 
acknowledged  himself  to  be  bound  to  the  said  A.  B.  in  the  sum  of 

dollars,  to  be  paid  to  the  said  A.  B.  on  demand,  **  which 

said  writing  obligatory  was  and  is  subject  to  a  certain  condition 
thereunder  written,  whereby  it  is  provided,  that  if  the  said  C.  D. 
should  on  or  before  the  tenth  day  of  August,  A.  D.  1831,  7nake  or 
cause  to  be  made  to  the  said  A.  B.  a  good  and  sufficient  general 

xcarranty  deed  for acres  of  land,  situate,  ^c.  then  the  said 

writing  obligatory  should  be  void  otherwise  in  full  force.  And  the 
said  A.  B.  avers,  that  the  said  C.  D.  though  often  requested,  did 
not,  on  or  before  nor  since  the  said  tenth  day  of  August,  A.  D. 
1831,  make  or  cause  to  be  made  to  the  said  A.  B.  a  good  and  suffi- 
cient general  warranty  deed,  for  said acres  of  land.     Where 

the  bond  contains  other  stipulations,  upon  which  breaches  are  to  be 
assigned,  proceed  thus:  ^'And  the  said  A.  B.  for  assigning  a  fur- 
ther breach  says,  that,  SfC."  Wherefore  the  said  A.  B.  says  that 
he  has  sustained  damages  to  the  amount  of dollars,  [the  pen- 
alty of  the  bond  or  upwards"]  and  thereupon,  &c.  [Conclude  as  in 
No.   i.]   («). 

(a)  At  common  law,  the  plaintiff,  upon  a  breach  of  the  contlition,  recover- 
ed judgment  and  liad  execution  for  the  whole  penalty  of  the  bond,  however 
trifling  the  damages  i.e  liad  sustained;  and  the  defendant  was  driven  into 
chancery  f)r  relief  But  now  under  the  Stul.  S  and9  Tr.  tlie  plaintiff  is 
bound  to  suggest  breaches  either  in  the  deolbration,  or  subeequently  upon 


DEBT.  87 

No.  9.     On  a  bond  to  perforin  covenants  ) 
in  another  Indenture.  ) 

\_Proceed  as  iii  No.  8.  to  the  ** And 

the  said  A.  B.  says  that  the  said  writing  obUgatory  was  made  with 
a  condition  thereunder  written,  that  if,  &c.  [Set  out  the  condition 
verbatim]  And  the  said  A.  B.  further  says  that  by  the  said  inden- 
ture, in  the  condition  of  the  said  writing  obhgatory  mentioned, 
which  the  said  A.  B.  now  brings  into  Court  here,  it  was  covenanted 
and  agreed,  &c.  \_Here  set  out  the  covenants  which  have  been 
broken,  and  assign  the  breaches  thereon  as  in  covenant,  post,  and 
conclude  as  in  No.  8. 


No.  10.     Debt  on  Judgment. 

[Proceed  as  in  No.  1.  to  the  *  the 

said  A.  B.  by  the  consideration  of  the  Court  of held  within 

and  for  the  County  of and  State  of on  the day  of 

at  the term  of  said  Court,  A.  D. recovered  Judg- 


the  record,  and  although  the  judgment  is  still  rendered  for  the  amount  of  the 
penalty,  yet  execution  issues  only  for  the  sum  justly  and  equitably  due. 
1  Saund.  53.  n.  1.  2  Saund.  187.  n.  2.  Our  Statute  upon  this  subject,  T'ol. 
29.  p.  66.  Ij  41.  42.  43.  44.  is  in  many  respects  similar  to  the  Stal.  8  and  9 
W.  It  does  not  however  embrace,  in  terms,  that  class  of  bonds  which  are 
given  to  secure  the  performance  of  covenants  or  agreements  contained  in  a 
seperate  instrument,  and  it  may  perhaps  be  qucElionaljle,  whether  such 
bonds  must  not  be  prosecuted  as  at  common  law. 

The  words  in  the  Statute,  "may  assign  broaches"  are  compulsory  upon 
the  plaintiff.  5  T,  /v'.  5:W.  G3(i.  2fnis.'Sll.  1  Saund. 'yS.  Ji.  I.  The 
plaintiff  under  this  Statute,  may  proceed  in  either  of  two  ways  : 

1.  He  may  declare  for  the  penalty  as  upon  a  single  bond,  or  a  bond  with- 
out condition— the  defendant  then  in  his  plea  sets  out  upon  oyer  the  condition 
of  the  bond,  and  pleads  a  general  performance;  the  plaintiff  thereupon 
assigns  his  breaches,  to  which  the  defendant  pleads,  and  the  issues  thereon 
joined  are  tried  like  other  issues.  \Vhere,  however,  the  condition  of  tho 
bond  is  to  perform  covenants  in  a  separate  instrument,  the  defendant  must, 
in  his  plea  of  general  performance,  set  out  such  instrument  and  the  cove- 
nants it  contains:  and  in  such  case  it  is  not  suiicient  to  plead  a  performance 
generally  of  the  condition,  though  such  plea  seems  to  be  cured  by  a  replica- 
tion.    A  East   MO.  346.  n.  (6).     1  Chit.pl.AV.).     1  Saund.  58.  n.  1. 

2.  The  plaintiff  may  set  out  the  conditions  and  assign  the  breaches  in  the 
declaration,  as  in  the  last  precedent.  This  course  is  the  most  simple  and  is 
generally  adopted  in  practice.  See,  Scire  Facias,  No.  5.  For  the  mode 
of  proceeding  in  suggesting  breaches  upon  the  record  and  upon  Judgment 
on  Demurrer  and  Default,  See, /los/,  Judgments  in  Debt.    No.  9. 


8S  DEBT. 

ment  against  the  said  C    D.  for  the  sum  of dollars  debt,  or, 

damages,  and dollars  costs  of  suit,  as  hy  the  record  thereof y 

now  remaining  in  said  Court  appears,  (a)  and  which  said  judgment 
is  in  full  force,  and  not  reversed,  annulled  or  satisfied;  And  the 
said  A.  B.  avers,  that  though  often  requested,  the  said  C.  D.  hath 
never  paid  the  said  Judgment  nor  any  part  thereof:  To  the  dam- 
age of  the  said  A.  B. dollars  [a  sum  sufficient  to  cover  in- 

terest']  and  thereupon,  &c.  [Conclude  as  in  No.  1. 


(a)  This  avnrinent  is  proper  when  the  suit  h  brought  in  the  same  Court 
which  rendered  the  judgment  but  if  the  action  be  founded  on  a  Judgment  of 
another  Court  say,  "a  copy  whereof,  duly  authenticated,  the  said  A.  B.  now 
here  in  Court  produces." 

Great  care  is  necessary  in  setting  forth  the  particulars  of  a  judgment;  for 
where  there  was  a  judgment  for  £,  288,  os.  1  d.  and  debt  was  brought 
for  £,  288,  omitting  the  penny,  it  was  held  to  be  a  fatal  variance,  and  not 
to  be  cured  by  a  remiflitur  of  the  penny,  for  a  remillilur  must  be  before 
Judgment.    3  Sir.  1171,    4  Ohio  Rep.  397.  Ohio  Conds,  841. 


DEBT.  80 

Pleas  in  Abatement. 
For  pleas  in  Abatement,  See,  Assumpsit,  ante,  38,  39, 

Pleas  in  Bar. 

For  general  principles  in  regard  to  pleas 
in  bar,  See,  Ante,  41. 

No.  1.     Non  est  factum. 
In  Debt. 


And  the  said  C.  D.  now  comes  and 
defends,  &c.  and  says  that  the  said  indenture  (or  articles  of  agree- 
ment, or  bond,  6fc.)  is  not  his  deed;  and  of  this  he  puts  himselt 
upon  the  country,  &c.  and  the  said  A.  B.  doth  the  like  (a).  See, 
Assumpsit,  ante,  41.  n.  (a.) 

For  notice  of  set-off.  See,  Ante,  41.  4;3. 


(a)  JVo!i  r.slfaclum,  it  seems,  is  such  a  general  issue  as  will  authoriz3  a  no- 
tice of  special  matter  under  ilie  statute,  1  Ohio  Rep.  330.  Okiu  Conds.  150. 
Aon  estfdctum,  puts  nothing  in  issue  but  the  execution  of  the  instrument 
declared  on.  Ibid. 

Under  this  issue,  the  defendant  may  give  in  evidence  coverture;  lunacy; 
Sir.  1104.  Escrow;  G.¥oJ,  218,  Sal/t,12-i.  Erasure,  alteration;  cancellation: 
T)  Co.  119,  b:  So,  if  two  are  bound,  "that  the  seal  of  one  is  torn  off.  "  JDyp.r 
r>9.  Fonrierly  it  was  usual  in  cases  of  escrow,  rasure,  interlineation,  <lyc. 
to  plead  tlie  matter  specially,  and  conclude,  thus:  "and  so  tlie  said  C  D. 
says,  that  the  writing,  «Jcc  .  is  not  his  deed,  and  of  this  he  puis  himself  upon 
the  country."  This  was  cdWed  a.  special  non  est  factiun.  But  these  pleaa 
have  fallen  into  disuse;  and  by  Jlotl.  C.  .1.  I  liavo  never  known  one  in  all 
my  time;  they  are  impertinent,  for  thereby  they  bring  all  the  proof  upon  th? 
defendant,  whereas  if  non  est  factum  generally  were  pleaded,  ihe  proof 
would  lie  on  the  plaintiff.  O.Vor/.  XilS.  Slonj.  pi.  t24S.  Under  our  statute, 
however,  the  plaiiitiirunder  the  plea  of  non  estfartttm,  is  not  bound  to  prove 
tlie  execution  of  tiio  bond,  &c.  unless  the  defendant  liles  with  his  plea  an 
affidavit  of  the  truth  thereof.     Vol.  29.  p.  12:;,'.  J.  1.  See,  Ante,  41.  n.  o. 

M 


90  DEBT. 

No.  2.     Nil  Debet 

In  debt. 


And  the  said  C.  D.  comes  and  de- 
fends, &c.  and  says  that  he  docs  not  owe  the  said  sum  of  money 
above  ucmaniled,  or  any  part  thereof,  in  manner  and  form  as  the 
said  A.  B.  hath  complained  against  him;  and  of  this  he  puts  himself 
upon  the  country,  &c.  and  the  said  A.  B.  doth  the  like.  (a).  See, 
No.  1.  Note  («).' 


(a)  JW/  Debet  may  nlways  be  pleaded  in  debt  on  simple  contract.  It  is 
a  proper  plea  in  some  cases  oF  debt  upon  specialty;  or  where  the  deed  is 
meiel}'  iudoceinent,  and  mailers  in  'pais  form  the  loundjitiun  of  the  action. 
.Tile  general  rule  is'  ems  to  i)e,that  wlienever  liie  plaintiff  must  aver  mailers 
in  pais  to  support  his  action  rn  a  specialty,  nil  debet,  is  pleadable.  Salk, 
284.5(i5.   1  Suund.  S8.  8  Johns.  S'S. 

Wager  of  Law,  of  which  the  defendant,  in  England,  may  avail  himself,  in 
debt  on  simple  contract,  has  never  been  recognized  in  our  courts.  S  Ohio  Rep. 
387.  Ohio  Conds.  615.  It  has  in  a  great  measure  sunk  into  disuse  in  Eng- 
land, though  an  instance  of  its  allowance  occurs  as  late  as  1824;  and  is  thus 
reported  in  2  Barn.  (■,'   Cress.  5:58.  9  £/.<^.  Coin.Laiv.  Rep.  1U9. 

DicET  on  simple  contract.  Defendant  pleaded  nil  debet  per  legem,  and 
the  Master  having  appointed  a  day  for  the  defendant  to  come  into  court 
with  his  compurgators: 

Langslovv  apjilied  to  the  court  to  assign  the  number  of  compurgators, 
with  whom  the  defendant  should  come  to  perfect  his  law.  The  books  leave 
it  doubtful  whether  six  or  eleven  are  necessary.  In  b^s  termes  de  la  ley, 
p.  442,  fwhicli  bouk  is  ascribed  to  ijastall,  by  the  preface  to  10  Co.  and  is 
there  mentioned  as  a  work  of  high  estimation^  is  this  passage  :  "  Mes 
quant  un  gagera  son  ley,  il  amesnera  ovesque  lui  6,  8,  or  12  de  ses  vicines 
come  le  court  lui  assignera  d.-  jurer  ovesque  lui  "  [Bayley  J.  Id  it  not 
said  in  Blackslone^s  Commeularies  that  eleven  are  necessary?  Vol.  J^.  343.] 
It  is,  but  his  opinion  is  founded  on  Co.  Litt.  295,  and  2  Inst.  45,  and  the 
authorities  there  cited,  viz.  Fleta,  b.  2.  c.  63.  and  33.  H.  6.  8.  do  not  sup- 
port the  position.  In  Fleta  it  is  staled  that  the  number  of  compurgators 
shall  depend  upon  the  number  of  the  secta,  produced  by  the  plaintiff:  that 
is  to  say,  if  the  secta  consist  of  two  the  compurgiitors  shall  consist  of  four, 
and  so  on,  the  compurgators  being  double  the  number  of  the  secta,  until  the 
secta  shall  amount  to  six,  when  it  will  not  be  necessary  for  the  compurga- 
tors to  be  double  their  number  ;  but  eleven  will  be  sufficient  ;  and  the 
assertion  in  the  Year  Book  before  mentioned,  that  the  tenant  shall  make 
his  law  de  dtiuclecima  manu,  that  is  to  say,  eleven  and  himself,  is  merely 
by  counsel  in  argument.  In  an  anonymous  case,  in  2  Ventr.  171.  it  is 
stated  that  less  than  eleven  compurgators  will  do.  In  St_yle''sPrac.  Reg.  .572. 
it  is  said  of  wager  of  law,  "He  that  is  to  do  it,  must  do  it  duodena  manu,  viz. 
he  must  bring  six  compurgators  with  him,  the  defendant  then  swears  de 
Jidelitate,  the  compurgators,  de  credulitate."     This  species  of  defence  is 


DEBT.  91 


No.  3.     Non  est  factum,  after  craving 
oyer  of  bond  and  condition. 


In  debt. 


And  the  said  C.  D.  comes  and  defends, 
&c.  and  craves  oyer  (a)  of  the  said  supposed  writing  obligatory, 
in  the    declaration  mentioned,  and   it  is   read  to  him,   (Sec.  he 


not  often  lieard  of  now;  but  in  Barry  v.  Robinson,  1  ..Y.  R.  iJ97.  the  court 
denied  that  a  wager  ot"  law  would  now  be  disallowed. 

ABIJO  TT  C.  J.  The  Court  will  not  ffive  the  defendant  any  assistance 
in  tins  matter.  He  must  bring  such  a  luuuber  ot  coniijurgators  as  he  shall 
be  advised  are  suthcient.  If  ilie  plaintirf"  is  not  satithed  wiih  the  number 
brought,  the  objection  will  be  open  to  him,  and  then  the  court  will  hear 
both  sides. 

Rule  refused. 

The  defendant  prepared  to  bring  eleven  compurgators,  but  the  plaintiff 
abandoned  the  action. 

(a)  It  is  usual,  in  our  practice,  to  file  with  the  declaration,  or  plea,  the 
original  deed,  or  a  copy  of  the  original  deed,  upon  which  th(5  action  is 
brotighton  the  plea  founded,  for  the  use  of  the  opposite  party.  Somttirnes 
the  original  is  retained  in  the  hands  of  the  attorney,  who  files  a  copy  with 
the  declaration  or  gives  a  copy  to  the  opposite  attorney,  upon  application. 
In  our  Srtate  there  seems  to  be  no  s-ettled  practice  in  relation  to  llm  prvftrt 
and  oyer  of  instruments.  In  England,  oyer  is  a  prayer  or  petition,  tiiat 
the  party  may  hear  re:»d  to  him  the  instrument,  &c.  stated  in  the  pleadings 
of  the  oi)i)osite  party,  and  which  document  is  by  intendment  uf  liw  in  court, 
when  it  is  pleaded  with  a  proferl.  3  Blue.  Onn.  ^599.  3  HaUc.  ll'J.  1^ 
Mod.  298.  'I'he  demand  of  oyer  is  a  kind  of  plea,  and  may  be  couiiter- 
))ltjaded.  3  Saik.  119.  The  api)lication  lor  oyer  should  be  made  before 
the  time  for  pleading  is  out;  1  T.  li.  150;  and  if  nut  made  till  alter  that 
time,  the  plaintiff  may  consider  the  demand  as  a  nullity,  and  sign  judg- 
ment. But  though  oyer  be  not  in  strictness  demandable,  yet  if  it  be  given, 
the  party  demamluig  has  a  right  to  maki-  use  of  it.  If  the  defendant  would 
insist  upon  his  demand  of  oyer,  he  should  move  tlie  court  to  have  it  entered 
upon  record.  G  ^Mod.  23.  If  ti.e  plaintilfon  the  other  hand,  would  contest 
the  oyer,  he  may  either  counterplead  it,  or  strike  outtlie  rest  of  the  ])lcad- 
ing,  and  demur.  2  ].cv.  142.  2  Salk,  4u7.  2  Ld.  Rnym.  OTO.  1  .Sauitd.  9. 
n.  j>.\  upon  which  the  judgment  of  the  court  i.«,  either  that  the  defendant 
have  oyer,  or  that  lie  answer  without  it.  On  the  latter  ju  Igmcnt  the 
defendant  may  bring  a  writ  of  error  ;  for  to  deny  oyer  where  it  ought 
to  be  grinted  is  error,  but  iwl  e  comer  so.  XIII.  Pdcrsd.  Abg.  73.  Tliere 
is  no  settled  time  prescribed  for  the  plaintiff  to  give  oyer,  but  the  defendant 
eball,  in  all  cases,  have  the  same  time  to  plead,  after  oyer  given,  as  he  had 
nt  the  time  of  demanding  it:  I  Sira  7U5.  The  plaintiff  shall  have  tlie 
same  time  to  reply  after  oyer  given  him  by  the  defendant  as  he  had  at  the 
tune  of  demanding  it.     XIII.  Pdcrsd.  Abg-IA.  See,  .'i/i/c,  83.  Ao/e  (a). 


92  DEBT. 


also  craves  oyer  of  the  condition  of  the  said  supposed  writing 
obligatory  and  it  is  read  to  him  in  these  words,  [iiere  set  out  the 
recitals,  and  condition,  verhatim7\  which  being  read  and  heard,  the 
said  C.  D.  says  that  the  said  supposed  writing  obligatory  is  not  his 
deed;  and  of  this  he  puts  himself,  &c.  (a).    [^Conclude  as  in  No.  1. 


No.  4.     Non  est  factum  and  Nil  debet  to  debt 
on  bond  and  simple  contract. 

C.  D.    ^ 

ads.       >    In  debt. 
A.  B.    ) 

And  the  said  C.  D.  comes  and 
defends,  &c.  and  as  to  the  said  first  count  of  the  said  declaration, 
says,  that  the  said  supposed  writing  obligatory  therein  mentioned 
is  not  his  deed,  and  of  this  he  puts  himself  upon  the  country,  &c, 
and  as  to  the  second,  third  and  last  counts  of  the  said  declaration, 
the  said  C.  D,  says  that  he  does  not  owe  the  said  sums  of  money 
therein  mentioned,  nor  any  of  them  nor  any  part  thereof,  in  man- 
ner and  form  as  the  said  A.  B.  hath  complained  against  him,  and 
of  this  he  puts  himself,  &c.     [^Conclude  as  in  No.  1. 


No.  5.     Gnerari  non  (b). 

And  the  said  C.  D.  comes  and  defends, 
'&c.  and  says,  that  he  ought  not  to  be  charged  with  the  said  debt 


(a)  It  is  said,  that  when  the  defendant  intends  to  dispute  Uie  validity  of 
the  deed,  ho  should  refer  to  it  in  his  plea,  merely  by  the  term  "  writing" 
or  "supposed  writing  obligatory,"  and  should  not  say  "writing  obligatory" 
because  such  admission  would  be  inconsistent  with  the  proposed  defence. 
1  f?aiLiid.  291.  a.  7i.  1.  Lill.  Ent.  166.  Where  no  use  is  intended  to  be 
made  of  the  bond  in  pleading,  it  is  unnecest-ary  to  crave  oyer  of  it  at  all, 
or  to  enter  any  such  prayer.  It  is  sufiicient  to  set  out  the  condition  upon 
oyer.  1  Saund.  9  b.  n.  1.  But  the  whole  condition,  or  deed  must  be  set 
fortn  upon  oyer,  for  if  there  be  any  misrecital,  the  plaintiff,  in  his  replica- 
tion, may  pray  that  the  deed,  &c.  may  be  enrolled,  and  then  demur.  1 
Saund.  9.  b.  n.  1.  4.  T.  B.  370. 

(6)  It  is  said,  that  when  the  plea  admits  the  validity  of  the  deed,  and 
that  there  was  once  cause  of  action,  but  avoids,  or  discharges  it  by  matter 
Bubsequent,  the  defendant  should  say,  '^actionem  non,''''  but  where  the  va- 


DEBT.  93 


by  virtue  of  the  said  supposed  writing  obligatory,  because  he 
says,  &c.  [Here  state  the  ground  of  defence']  and  this  he  is  ready 
to  verify;  wherefore  he  prays  judgment,  if  he  ought  to  be  charged 
with  the  said  debt  by  virtue  of  the  said  supposed  writing  obUga- 
tory,  &c. 


No.  6.     Deed  ohtamcd  hy  fraud. 
In  debt. 


1.  No7i  est  factum,  as  in  No.  1,  and 
then  proceed  thus:  And  for  a  further  plea,  onerari  non,  as  in  the 
last  precedent,  because  he  says  that  the  said  writing  in  the  said 
declaration  mentioned,  was  obtained  from  the  said  C.  D.  by  the 
said  A.  B.  (and  others  in  collusion  with  him)  by  fraud,  covin  and 
misrepresentation,  that  is  to  say,  by  the  said  A.  B.  (and  others  in 
collusion  with  him)  falsely  and  fraudulently  representing  to  the 
said  C.  D.  that,  &c.  [//ere  stale  the  fraudulent  misrepresentations^ 
and  that  the  deed  was  executed  in  confidence  of  such  representations 
and  conclude  thus :  to  wit,  at,  &c.  aforesaid ;  wherefore  the  said 
C.  D.  saith  that  the  said  deed  in  the  said  declaration  mentioned  was 
and  is  void  in  law,  and  this  he  is  ready  to  verify;  wherefore  he 
prays  judgment  if  he  ought  to  be  charged  with  said  debt,  by  virtue 
of  the  said  writing,  &c.  [Add  a  plea  of  fraud  and  covin  generally, 
omitting  a  statement  of  the  particuUtr  misrepresentations.']  {a). 


No.  7.     Duress  of  imprisonment. 
In  debt. 

And  the  said  C.  D.  comes  and  defends, 

lidity  of  Uie  deed  is  disputed,  tiie  defendant  should  say,  '^^  oncrnri  non 
debet."  1  Sannd.  290.  n.  ;3.  (lucre,  as  to  tlie  necctsity  of  observing  lliia 
distinction  in  Ohio. 

(a)  'I'hat  fraud  may  be  taken  advantage  of  nt  law,   Set,  2  T.  R.  75o. 
3  T.  R.  438.  2  liai/.  11.    2  Chill,  pi.  49.3.    Ccnlra-.  13  Joknt.  430. 


94  DEBT. 

&c.  and  says,  tliat  he  ought  not  to  bo  charged  with  the  said  debt 
by  virtue  of  the  said  writing  obligatory,  because  he  says,  that  at 
the  time  of  the  making  the  said  writing,  he  the  said  C.  D.  was  im- 
prisoned by  the  said  A.  B.  and  others  by  their  covin,  to  wit,  at,  &c. 
and  there  detained  in  prison  until  by  force  and  duress  of  that  im- 
prisonment he  the  said  C.  D.  then  and  there  inade,  sealed  and 
delivered  the  said  writing  to  the  said  A.  B.  and  this  he  is  ready  to 
verify;  wherefore  he  prays  judgment  if  he  ought  to  be  charged  by 
the  said  writing  obligatory  and  for  his  costs,  &c. 

Replication.  Defendant  at  large,  6f-c.  And  the  said  A.  B. 
says  that  notwithstanding  any  thing  by  the  said  C.  D.  in 
pleading  alleged,  he  ought  to  be  charged  with  the  said  debt  by 
virtue  of  the  said  writing  obligatory,  because  he  says,  that  the  said 
C.  D.  at  the  time  of  the  making  of  the  said  writing  obligatory  was 
at  large  and  at  his  full  liberty  and  out  of  all  prisons  whatsoever, 
and  that  he  made,  sealed  and  delivered  the  said  writing  to  the  said 
A.  B.  of  his  own  free  will  and  accord  and  not  Ijy  force  or  duress 
of  imprisonment,  and  this  he  prays  may  be  enquired  of  by  the 
countrv,  &c. 


No.  9.     Solvit  ad  diem. 

\_Actio  non,  after  craving  oyer,  as  in  No.  3 

because  he  says  that  he  the  said  C.  D.  on  the  said day  of 

[The  daxj  of  payment  inentioned  in  the  coiidition']  paid  to  the  said 

A.  B.  the  said  sum  of dollars  in  the  said  condition  mentioned, 

together  with  all   interest  due  thereon,  according  to  the  form  and 

effect  of  the  said  condition,  to  wit,  at And  this  he  is  ready  to 

verify :  wherefore  he  prays  judgment  if  the  said  A.  B.  ought  to 
have  or  maintain  his  said  action  against  him,  &;c. 


No.  10.     General  performance,  of 
covenants  in  Indenture. 


[Actio  non,  after  craving  oyer,  as  in  No.  3  ■ 


because  he  says  that  there  was  not,  nor  is  there  any  negative  or 
disjunctive  covenant  or  agreement,  contained  in  the  said  indenture, 


DEBT.  95 

in  the  said  condition  of  the  said  writing  obligatory  mentioned,  on 
the  part  of  the  said  C.  D.  to  be  omitted,  done,  observed,  performed, 
fulfilled  or  kept,  and  that  he  the  said  C.  D.  hath  truly  performed 
and  kept  the  said  indenture,  and  all  things  therein  contained,  ac- 
cording to  the  true  intent  and  meaning  thereof:  And  this,  &c. 
[Conclude  as  in  No.  9. 


No.   11.     The  like,  where  the  bond  is  for  the  perfor- 
mance of  acts  specified  in  the  condition. 

\_Actio  non,  after  craving  oyer,  as  in  No.  3 

because  he  says,  that  he  the  said  C.  D.  at  all  times  since  the  making 
of  the  said  writing  obligatory,  and  the  condition  thereof,  has  truly 
kept  and  performed,  all  and  singular,  the  articles,  clauses,  payments, 
conditions,  and  agreements  in  the  said  condition  of  the  said  writing 
obligatory  mentioned,  according  to  the  true  intent  and  meaning  of 
the  same;  and  this,  &c.  [Conclude  as  in  No.  9.]  (a). 

No.   12.     Nul  tiel  record. 
In  Debt. 


And  the  said  C.  D.  comes  and  defends,  (fee. 
and  says  that  there  is  not  any  record  of  the  said  supposed  recovery 
in  the  said  declaration  mentioned,  remaining  in  the  said  Court  of 

in  manner  and  form  as  the  said  A.  B.  hath  in  his  declaration 

alleged  :  and  this  he  is  ready  to  verify;  wherefore  he  prays  judg- 
ment if  the  said  A.  B.  ought  to  have  or  maintain  his  said  action 
against  him,  <fec. 


No.  13.     NoU'DamniJicatus. 

[Actio  non,  after  craving  oyer  as  in  No.  3. 
—  because  he  says,  that  the  said  A.  B.  hath  not  at  any  time  since 


(a)  The  defendant  cannot  plead  perlbrmanco  of  the  condition,  without 
praying  oyer  and  eettingf  out  the  condition  in  hcBc  verba.  2  Sound.  409 
n.  2.  See,  86.  n.  (a). 


96  DEBT. 

the  making  of  the  eaid  writing  obligatory  and  condition  thereof, 
hitherto  been  in  any  manner  damnified,  by  means  of  any  matter 
or  thing  in  the  said  condition  mentioned;  and  this,  &c.  [^ConclucL 
as  in  No.   9.]  (a). 


{a)  Tills  plea  is  sufficient  when  the  condition  of  the  bond  is  merely  to 
indemnify,  but  where  the  condition  is  for  the  performance  of  any  particular 
act,  the  performance  must  be  specially  pleaded.  1  Saund  116.  n.  1.  1  Bos. 
and  Pull.  638.  610. 


DEBT.  97 


Verdicts. 


For  the  general  principles  in  relation  to  Trials  by  Jury  and 
Verdicts,  See,  Ante,  51. 


No.   1.      Verdict  for  plaintif,  on  Nil  Debet. 
In  Debt. 


This  day  came  the  parties  by  their  attor- 
nies,  and  thereupon  came  a  jury,  to  wit,  E.  F.  &c.  who  being  em- 
pannelled  and  sworn,  the  truth  to  speak  upon  the  issue  joined  be- 
tween the   parties,  upon  their  oaths  do  say,  *  that  the  said  C.  D. 

doth  owe  to  the  said  A.  B.  the  sum  of («)  dollars  in  manner 

and  form  as  the  said  A.  B.  hath  complained  against  him;  and  they 
assess  the  damages  of  the  said  A.  B,  by  reason  of  the  detaining  the 
said  debt  to dollars;  Therefore  it  is  considered,  6;:c.  (b). 


(fi)  In  debt  U[)on  simple  contract,  sJng'le  hill.'',  and  perhaps  in  some  other 
cases,  tlic  jury  ought  to  disregard  t!ic  amount  claimed  in  the  declaration, 
and,  as  in  assumjtuil,  find  the  sum,  justly  due  from  the  dei'endant  to  the  plain- 
tilV.     The  damages  arc  of  course  merely  nominal.   She,  J)nlc,S2.  ii.{b) 

Where  the  action  is  grounded  on  a  specialty,  k,c.  giving  a  sum  certain  as 
a  penalty,  and  the  defendant  pl.iads,  «o't  est/actum,  which  is  found  against 
liim,  the  verdict  ought  not  to  find  the  debt;  because  non  est  factum,  puts  in 
issue  only  the  deed,  and  that  issue  bcin^  found  for  the  plaintiiT,  ihe  debt 
stands  admitted  of  record,  and  the  jury  merely  assess  the  damages  occa- 
sioned by  the  detention  of  the  debt.  Tiie  judgment  is  thereupon  rendered 
for  the  debt,  as  it  stands  admitted  on  the  record  and  for  the  damages  as 
assessed  by  t!ie  jury.  The  same  rule  must  prevail  where  solvit  nd  diem, 
7vtl  iif'l  record,  or  any  other  plea  is  pleaded,  which  if  found  for  the  plaintiff, 
leaves  the  debt,  being  a  sum  ccr»ain,  confessed  upon  the  record.  .See, 
Judgments  in  Deb!,  post. 

(/;)  If  there  be  a  motion  for  a  new  trial,  or  in  arrest  of  .Judgment,  such 
motion  is  entered  thus  :  "and  thereupon  the  said  defendant  moves  fur  a 
71CW  Inal,  or,  in  arrest  oj"  jud^'meut,Jur  reasons  oiijllc,^'  nnd  tiic  judgment 
on  the  verdict  is  postponed,  until  the  motion  is  disposed  of.  A  party  can- 
not move  for  a  new  trial  after  a  motion  in  arrest  of  judgment.  Stat.  T'ol. 
20.  p.  73.  }  P3. 

N 


98  DEBT. 


No.  2.      Verdict  for  Plainliff,  ) 
on  non  est  factum.   ) 

[Proceed  as  in  No.  1.  to  the  * that  the 

said  writing  obligatory  is  the  deed  of  the  said  C.  D.  as  the  said  A. 
B.  hath  complained  against  him,  and  they  assess  the  damages  of  the 
said  A.  B.  by  reason  of  the  premises  to dollars;  Therefore, 


No.  3.      Verdict  for  Plaintiff, 
on  solvit  ad  diem. 

[Proceed  as  in  No.  1.   to  the  * that 

the  said  C.  D.  did  not  pay  to  the  said  A.  B.  the  said  sum  of 

dollars  or  any  part  thereof  on  the day  of in  the  condi- 
tion of  the  said  writing  obligatory  mentioned,  according  to  the  form 
and  effect  of  the  said  condition,  in  manner  and  form  as  the  said  C. 
D.  hath  alleged;  and  they  assess  the  damages  of  the  said  A.  B.  by 
reason  of  the  premises  to dollars;  Therefore,  &c. 

No.  4.      Verdict  for  defendant  ) 
on  nil  debet.       ) 

[Proceed  as  in  No.  1.  to  the  * that  the 

said  C.  D.  doth  not  owe  to  the  said  A.  B.  the  said  sum  or  sums  of 
money  demanded  by  him  or  any  part  thereof,  in  manner  and  form 
as  he  hath  complained  against  him;  Therefore,  &c. 

No.  5.      Verdict  for  defendant  ) 
on  non  est  factum.  \ 

[Proceed  as  in  No.  1.  to  the  * that 

the  above  mentioned  writing  obligatory  is  not  the  deed  of  the  said 
C.  D.  as  the  said  A.  B.  hath  in  that  behalf  alleged;  Therefore,  &c. 


No.  6.      Verdict  for  defendant,  on  notice  ) 
of  set-off ,  under  non  est  factum.  \ 

[Proceed  as  in  No.  1.  to  the  * that  the 


DEBT.  99 

said  writing  obligatory  is  the  deed  of  the  said  C.  D.  as  the  said  A. 
B.  hath  alleged,  and  they  assess  the  damages  of  the  said  A.  B.  by 
reason  of  the  premises  to  300  dollars;  and  the  jury  aforesaid  do 
further  say,  that  the  said  A.  B.  doth  owe  to  the  said  C.  D.  the  sum 
800  dollars,  parcel  of  the  said  several  sums  above  demanded  by  the 
said  C.  D.  in  his  notice  of  set-off  aforesaid,  and  doth  not  owe  the 
residue  thereof;  and  so  the  said  jury  find,  that  a  balance  of  500 
Dollars  is  due  from  the  said  A.  B.  to  the  said  C.  D.  after  allowing 
and  crediting  to  the  said  A.  B.  the  said  sum  of  300  dollars,  his 
damages  aforesaid  in  form  aforesaid  assessed;  Therefore,  &c. 


For  Verdicts  in  Debt  on  bond,  &c.  under  the  Statute,  See, posf, 
Judn;ments  in  Debt. 


For  the  Forms  of  other  Verdicts,  See,  Verdicts  in  Assumpsit^ 
ante,  52. 


lOf  DEBT. 


JuDOaiENTS, 


For  general  principles  in  relation  to  Judgments,  See,  Assumpsit^ 
ante,  60.  For  the  Forms  of  Judgments,  on  Demurrer  to  Pleas, 
Replications,  &c.  in  Ahateinent,  See,  Assumpsit,  ante,  61. 


No.   1.     Judgment  for  plaintiff,  on  demurrer  to  declaration  ) 
on  simple  contracts^  single  bonds^  8fc.       ) 

A.  B.    ^ 

vs.      >    In  Debt. 
C.  D.    ) 

This  cause  came  on  to  be  heard  upon  the 
demurrer  of  the  defendant  to  ^the  plaintiff's  declaration,  and  was 
argued  by  cciinsci,  and  the  Court  being  fully  advised  in  the  premises, 
are  of  opinion  that  the  matters  contained  in  the  declaration  are 
sufficient  in  law  for  the  said  A.  B.  to  maintain  his  said  action 
against  the  said  C.  D.  whereupon  it  is  considered,  that  the  said  A. 
B.  ouoht  to  recover  his  debt  aijainst  the  said  C.  D.  and  his  dama- 
ges  by  reason  of  the  detention  thereof ;  but  because  the  said  debt 
and  damages  are  to  the  Court  unknown,  it  is  ordered  that  a  jury  be 
empannelled  to  inform  the  Court  of  the  same,  *  (a)  and  thereupon 
a  jury  being  called  came,  to  wit,  E.  F.  &:c.  who  being  empannel- 
led and  sworn  to  enquire  as  well  of  the  said  debt  as  of  the  said 
damages,  upon  their  oaths  do  say,  that  the  said  C.  D.  doth  owe  to 
the  said  A.  B.  the  sum  of dollars,  and  they  assess  his  dama- 
ges by  reason  of  the  detention  thereof  to dollars;  Therefore 

it  is  considered  that  the  said  A.  B.  recover  of  the  said  C  D.  the 

said  sura  of dollars  his  debt  aforesaid  and  the  said  sum  of 

dollars  his  damages  aforesaid,  and  also  his  costs  in  this  behalf  ex- 


(a)  The  Verdict  is  not  commonly  taken  immedlateli/  upon  the  rendition 
of  the  judgment  upon  the  demurrer,  but  at  a  subseqnenl  day  or  term.  In 
such  case  the  judgment  is  entered  upon  the  demurrer,  at  the  time  of  its 
rendition,  as  in  the  above  precedent  to  tiie.  *  Afterwards  when  the  verdict 
is  taken,  proceed  tlius:  "This  day  came  again  the  parties  by  their  attor- 
nies  and  thereupon  a  jury  being  called  came,  to  wit,  E.  F.  &c."  [Conclude 
at  above.] 


DEBT.  101 

pended  taxed  to dollars.     See,  Ante,  G2.  notes,  (a)  and'^(b). 

and  Ante  90.  notes  (a)  and  (b). 


No.  2.      Judgment  for  plaintiff,  by  default,    ) 
on  simple  contract,  single  bonds,  tfv.  debt 
found  and  dainages  assessed  by  Court. 


In  Debt. 


This  day  came  the  said  A.  B.  by  his  attor- 
ney and  the  said  C.  D.  tliough  solemnly  called  came  not  but  made 
default;  whereupon 'jt  is  considered  that  the  said  A.  B.  ought  to 
recover  his  debt  against  the  said  C.  D.  and  his  damages  by  reason 
of  the  detention  thereof,  and  thereupon  *  neither  of  the  parties  re- 
quiring a  jury,  and  the  Court  being  fully  advised  in  the  premises 
do  find  that  the^said  C.  D.  doth  owe  to  the  said  A.  B.  the  sum  of 

dollars,  and  do  assess  his  damages  by  reason  of  the  detention 

thereof  to dollars:  Therefore,  &c.    \_Concludeas  in'^o.  1.] 


No.  3.     The  like,  debt  found  and   ) 
damages  assessed  by  the  Jury.  ) 

{Enter  the  judgment  by  default  as  in  No.  2, 

to  the  * the  said  A.  B.  or,  the  said  C.  D.  demanding  a  jury, 

it  is  ordered  that  a  jury  be  empannelled  to  inform  the  Court  of  the 
debt  and  damages  aforesaid,  &c.  {Conclude  as  i?i  No.  1.] 


No.  4.     Judgment  for  Plaintiff, 
on  nil  debt. 

[Enter  Verdict  No.  1.  aiite,  97 There- 
fore it  is  considered  that  the  said  A.  B.  recover  of  the  said  C.  D. 

the  said  sum  of dollars  his  debt  aforesaid  and  the  said  sum  of 

dollars  his  damages  aforesaid  and  also  his  costs,  &c.  {Con- 
chide  as  rnNo.  1.] 


102  DEBT. 


No.  5.     Judgment  for  Plaintiff  on  submission 
to  the  Court  to  try  the  issue  and  assess  damages. 

A.  B.    ^ 

vs.      >    In  Debt. 
C.  D.    ) 

This  day  came  the  parties  by  their  attor- 
iiies  and  submit  this  cause  to  the  Court  upon  the  issue  joined,  and 
the  Court  being  fully  advised  in  the  premises,  do  find  that  the  said 

C.  D.  doth  owe  to  the  said  A,  B.  the  sum  of dollars,  and  do 

assess  his  damages  by  reason  of  the  detention  thereof  to There- 
fore it  is  considered,  &c.  \_Conclude  as  in  No.  1.] 


No.  6.     Judgment  for  plaintiff,  hy  con- 
fession, relicta  verificatione. 


In  debt. 


This  day  came  the  parties  by  their 
attorneys,  and  thereupon  the  said  C.  D.  relinquishing  his,  plea, 
says  that  he  cannot  deny  the  action  of  the  said  A.  B.  nor  but  that 
he  the  said  C.  D.  doth  owe  to  the  said  A.  B.  the  sum  of dol- 
lars, and  confesses  that  he  the  said  A.  B.  hath  sustained  damages 

by  reason  of  tlie  detention  thereof  to dollars  ;  Therefore  it  is 

considered,  &c.  {^Conclude  as  in  No.  1. 


No.  7.     Judgment  for  plaintiff, 
on  71071  est  factum. 

[Enter  verdict  No.  2.     Ante,  98. — 
Therefore  it  is  considered  that  the  said  A.  B.  recover  of  the  said 

C.  D.  the  said  sum  of dollars,  his  damages  aforesaid  and  also 

his  costs,  &c.  [Conclude  as  in  No.  1. 


DEBT.  103 


^N'o.  8.     Judgment  for  plaintiff, 
on  nul  tiel  record. 


In  debt. 


This  day  came  the  parties  by  their 
attorneys  and  the  record  aforesaid  being  inspected  by  the  court,  it 
sufficiently  appears  that  there  is  such  a  record  of  recovery  against 
the  said  C.  D.  at  the  suit  of  the  said  A.  B.  as  he  hath  alleged ; 
whereupon  it  is  considered  that  the  said  A.  B.  ought  to  recover 
his  debt  aforesaid  and  also  his  damages  by  reason  of  the  detention 
thereof,  *  but  because  the  said  damages  are  to  the  court  unknown, 
it  is  ordered  tlrat  a  jury  be  cmpannelled  to  inform  the  court  of 
the  same ;  and  thereupon  a  jury  being  called  to  come,  to  wit, 
E.  F.  &c.  who  being  empannelled  and  sworn  to  enquire  of  the 

said  damages  do  assess  the  same  to dollars.    Therefore  it  is 

considered,  &c.  {ri).  \_Concliidc  as  in  No.  1. 


The     ASSIGN3IENT     OF     BREACHES,     AND     PROCEEDINGS     UPON 

Judgments,   by   defaui.t,   confession   and   demurrer 

UNDER    THE    f^TATUTE.        Vol.  29.  J^.  GG.    §  41,  42,  43,  44. 

No.  9.      Verdict  and  Judgment  for  jr'laintijj','\ 

,  \oJierc  the  hrcaclics,  are  assigned  in  ' 

the  declaration,  and  issue  taken  to  iiic  | 

country.  J 

A.  B.    ^ 

vs.       /    In  debt. 
C.  D.    ) 

This  day  came  the  parties  by  their 
attornies  and  thereupon  came  a  jury,  to  wit,  E.  F.  &c.  who  being 


{(i)  In  debt  upon  jiul^mieni,  there  arc,  in  gt-ncral,  no  other  damnf^cs,  than 
interest  iijion  the  orijTinul  jiiclgintni.  It  is  usual  liicrclore  lo  s-ubinit  tlio 
assessnioiit  of  damages  to  the  court,  as  in  cases  of  default.  In  bucli  case?, 
proceed  as  in  ihe  last  precedent  to  tlic  •'■  and  theti  say,  "and  tliereupon,  by 
consent  of  parties,  the  assessment  of  said  dainngrt;  is  submitted  to  tiic 
court  and  the  court  being  fully  advised  in  the  premises  do  assess  the  same 
to dollnra"';  Therefore,  iVc.   IConcluJc  as  in  No.  1. 


104  DEBT. 

empannclled  and  sworn  the  truth  to  speak  upon  the  issue  joined 
between  the  parties,  upon  their  oaths  do  say,  that  the  said  writing 
obligatory  is  the  deed  of  the  said  C.  D.  as  the  said  A.  B.  hath  in 
that  behalf  alleged;  and  they  do  further  say,  that,  "the  said  C.  D. 
did  not,  &c.  [Here  state  what  the  defendant  did,  or  omitted  to  do^  as 
alleged  in  the  assignment  of  breaches'] ;  and  the  said  jury  do  further 
say  that  said  A.  B.  hath  sustained  damages  by  reason  of  the 

premises  to dollars :  Therefore  it  is  considered  that  the  said 

A.  B.  recover  of  the  said  C.  D.  the  said  sum  of dollars  hia 

debt  aforesaid  [The  penalty  of  the  bond] :  and  it  is  further  ordered 
that  execution  issue  herein  against  the  said  C.  D.  for  the  said  sum 

of  dollars,  the   damages  aforesaid,  by  the  jury  aforesaid 

assessed,  and  also  for dollars  the  costs  of  the  said  A.  B.  in 

this  behalf,  expended,  &c.  (a).  \_Conclude  as  in  No.  1.]  See,  ante, 
86,  ?i.  (a). 

No.   10.     Judgment  for  plainti^^  for  the  amount  ^ 

equitably  due  found  by  tlie  cowl,  after  >  ; . 

Judgment  by  Default.  ) 

A.  B.    ^ 

vs.      >    In  debt. 
CD.) 

This  day  came  the  said  A.  B.  by  his 
attorney  and  the  said  C.  D.  though  solemnly  called  camx  not  but 
made  default :  Whereupon  it  is  considered  that  the  said  A.  B. 
ought  as  well  to  recover  against  the  said  C.  D.  his  debt,  as  also  to 
have  execution  for  so  much  thereof  as  may  be  due  accordmg  to 
equity;  *  and  thereupon  neither  party  demanding  a  jury,  the  court 

being  fully  advised  in  the  premises,  do  find  that  the  sum  of 

dollars  is  now  due  from  the  said  C.  D.  to  the  said  A.  B.  according 
to  equity:    Therefore  it  is  considered  that  the  said  A.  B.  recover 

of  the  said  C.  D.  the  said  sum  of dollars,  his  debt  aforesaid 

[the  penalty  of  the  bond]:  and  it  is  further  ordered  that  execution 


(a)  When  the  plaintiff  declares  for  the  penalty  alone,  and  the  defendant, 
after  oyer  of  the  condition,  pleads  non  est  factum,  upon  which  issue  is 
joined,  the  plaintiff  may  then  assign  his  breaches,  and  thereupon  the  ver- 
dict and  jndgmont  follow  as  in  the  above  precedent.  8  T.  R.  25a.  2  Saund. 
187.  n.  2. 


DEBT.  105 

issue  herein  against  the  said  C.  D.  for  the  said  sum  of dollars, 

the  amount  now  due  as  aforesaid  according  to  equity,  and  also  for 

dollars,  the  costs  of  the  said  A.  B.  in  this  behalf  expended, 

&c.  [Conclude  as  in  No.  1.]  See,  Ante,  78.  n.  (a).  [The 
proceedings  after  judgment  hy  confession  and  on  demurrer  are 
substantially  the  same  as  in  this  precedentJ] 


No.   11.     The  like,  when  the  breaches  are  ( 
not  assigned  in  the  declaration.  \ 

[Proceed  as  in  No.  10  fo  the  *  but 
because  judgment  hereof  should  not  be  given  until  the  truth  of 
certain  breaches  hereafter  to  be  assigned  by  the  said  A.  B.  shall 
be  enquired  into,  and  the  amount  equitably  due  to  the  said  A.  B. 
by  reasop  of  those  breaches  shall  be  ascertained,  therefore  let 
judgment  hereof  be  stayed  until  such  time  as  the  said  premises 
shall  be  ascertained. 

[After  the  judgment  is  thus  taken  the  breaches  are  to  be  assigned 
as  follows :  "  And  the  said  A,  B.  now  comes  and  says  that  the 
said  "writing  obligatory  in  said  declaration  mentioned  was  subject 
to  a  certain  condition,  thereunder  written,  whereby  after  reciting, 
&c."  [Here  state  the  recitals  and  assign  the  breaches.']  Then 
follows  the  final  judgment  thus:  "And  now  comes  again  the  said 
A.  B.  by  his  attorney,  and  neither  party  demanding  a  jury,  &c. 
[Conclude  as  in  No,  10. 


No.  11.  Judgment  for  the  amnxint  equitably 
due  found  by  jury  ajlcr  Judgment 
by  default. 

[Pi-occed  as  in  No.  10  io  the  *  and 
thereupon  the  said  A.  B.  or,  the  said  C.  D.  demanding  a  jury  to 
ascertain  the  same,  a  jury  being  called  come,  to  wit,  E,  F,  &c, 
who  being  empannclled  and  sworn  to  ascertain  the  amount  now 
equitably  due  to  the  said  A,  B,  by  reason  of  the  premises,  upon 

their  oaths  do  say  that  the  sum  of dollars  is  now  due  by 

reason  of  the  premises  to  the  said  A.  B,  according  to  equity: 
Therefore  it  is  considered,  &:c,  [Conclude  as  in  No,  10. 

O 


106  DEBT. 

[.    '    " 

I    The  'like  form  is  applicable  to  proceedings  after  Judgment  by 

confession  and  on  Demurrer. 

For  the  forms  of  Judgments  in  favor  of  the  defendant,  See, 

Judgmentstn  Assumpsit,  ante,  67. 


COVENANT.  107 


The  action  of  covenant  is,  in  general,  commenced  by  summons 
or  capias  ad  respondendum. 


I.    Summons. 

The  summons  is  issued,  as  a  matter  of  course,  upon  filing  a 
Praecipe  with  the  Clerk  of  the  proper  Court.  [See,  ante,  7, 
note  (a). 


PrjEcipe  for  Sujimons  in  Covenant. 

A.  B.    ) 

vs.      >    In  covenant.  Damages dollars. 

Issue  a  summons  returnable  [^forth- 
with, if  in  term  time,  or,  at  next  term,  if  in  vacation.']  Indorse, 
"  Suit  brot,  &c."     See,  ante,  8.  note,  (a). 

T.  S.  Atty.  for  Pltff. 

To  the  Clerk  of Coin.  Pleas,  or  Sup.  Court. 

Dated,  &;c. 


Writ  of  Summons. 

The  State  of  Ohio County,  ss. 

To  the  Sherift'of  said  County :  Greeting. 

Wc  command  you  to  summon  C.  D.  to  appear  before  our 
Supreme  Court,  or.  Court  of  Common  Pleas,  of  the  County  afore- 
said, at  the  Court  House  in  said  County,  forthwith  [if  in  term  time'] 
or,  on  the  first  day  of  their  next  term  [if  in  vacation']  to  answer 

unto  A.  B.  in  a  pica  of  covenant  broken.     Damages dollars: 

and  have  you  then  there  this  writ,   {a.) 

(«)  For  the  proper  endorsements  to  be  made  upon  this  writ,  See,  ante,  8. 


108  COVENANT. 

Witness,  T.  T.  Chief  Judge  of  out  Supreme  Cowt^  or,  President 

Judge  of  our  Court  of  Common  Pleas,  aforesaid,  this day  of 

A.  D. 

Attest. 

F.  C.  Clerk. 

For  the  forms  of  an  Alias,  Pluries,  and   Testatum  Summons, 
See,  ante,  9,  10. 


II.     Capias  ad  respondendum. 

When  a  capias  may  be  sued  out.  See,  ante,  10, 

Precipe  for  capias. 

A.  B.  ) 

vs.     >  In  covenant.  Damages dollars. 

C.  D.  ) 

Issue  a  capias  ad  respondendum 
returnable  forthwith  [if  in  ter-m  time']  or,  at  the  next  term  [if  in 
vacation.']     Indorse,  "Suit  brot,  &c."     See,  ante,  8.  note,  (a). 

Hold  to  bail  in  the  sun)  of :•  dollars. 

To  the  Clerk  of Com.  Pleas,  or.  Sup.  Court. 

Dated,  &;c. 

T.  S.  atty.  for  pltff. 

For  the  Form  of  Affidavits,  and  Judge's  order  to  hold  to  Bail, 
See,  ante^  11,  12. 


Writ  of  capias  ad  respondendum. 

The  State  of  Ohio County,  ss. 

To  the  Sheriff  of  said  County:  Greeting. 
We  command  you  to  take  C.  D.  if  he  may  be  found  in  your  baili- 


COVENANT.  109 

wick,  and  him  safely  keep,  so  that  y(ju  have  his  body  before  our 
Supreme  Court  or,  Court  of  Common  Pleas,  of  the  County  aforesaid, 
at  the  Court  House  in  said  County,  forthwith,  or,  on  the  first  day  of 
their  next  term,  to  answer  unto  A.  B.  in  a  plea  of  covenant  broken. 

Damages dollars;  and  have  you  then  there  this  writ. 

Witness,   T.   T.    Chief  Jttdge  of  our  Supreme  Court,  or. 
President  Judge  of  our  Court  of  Commori  Pleas,  aforesaid,  this 

day  of A.  D. . 

Attest. 

F.  C.   Clerk. 

For  the  proper  endorsements  to  be  made  upon  this  writ,  the 
Forms,  of  an  Alias,  Pluries,  and  Testatum  capias,  Bail  Bond  to  the 
Sheriff,  Recognizance  of  Special  Bail,  Bail  piece,  and  Appearance 
of  Defendant,  See,  Assumpsit,  Ante  from  12  to  18. 


no  COVENANT. 


Declarations. 

For  general  principles  in  relation  to  Declarations,  See,  Decla- 
rations in  Assumpsit,  Ante,  20. 


No.   1.     Lessor  against  Lessee  for 
rent,  upon  an  Indenture. 

Supreme  Court,  or  Cotirt  of  Common  PleaSj 

Term.     [The  term  to  ivhic/i  the  w?  it  was 

County,  ss.    <(  returned,  or,  the  term  at  which  the  cause  was 
I  brought  into   Coiirt,  hy  appeal  or  certiorari^ 
A.  D. 


A.  B.  complains  of  C.  D.  {a)  in  a  plea  of  covenant,  for  that 

whereas  *  on  at by  a  certain  indenture  then  and  there 

made  between  the  said  A.  B.  of  the  one  part  and  the  said  C.  D.  of 
the  other  part,  one  part  of  wliich  said  indenture  sealed  with  the 
seal  of  the  said  C.  D.  the  said  A.  B.  now  brings  into  Court,  (h) 
the  said  A.  B.  did  demise  and  lease  unto  the  said  C.  D.  his  execu- 
tors, administrators  and  assigns,  a  certain  messuage  or  dwelling 
house,  with  the  appurtenances,  (c)  to  have  and  to  hold  the  same 

from to yielding  and  paying  therefor  yearly  and  every 

year  to  the  said  A.  B.  his  heirs  or  assigns  the  sum  of dollars 

on  the day  of in  each  and  every  year.     And  the  said 

C.  D.  did  thereby  for  himself,  his  executors,  administrators,  and 
assigns,  covenant  and  agree  to  and  with  the  said  A.  B.  his  heirs 
and  assigns,  that  the  said  C.  D.  his  executors,  administrators  or 
assigns  would  pay  or  cause  to  be  paid  to  the  said  A.  B.  his  heirs  or 

assigns,  the  said  yearly  sum  of dollars  at  the  several  days 

and  times  aforesaid.     By  virtue  of  wliich  demise  the  said  C.  D. 


(a)  See,  Ante,  21,  note  (a). 

{b)  See,  Anle,  83,  note  (a). 

(c)  "Certain  tenements  with  the  appurtenances  particularly  mentioned 
and  described  in  the  said  indenture,  situate,  &c."  is  a  siitRcient  description; 
and  in  order  to  avoid  a  variance  it  is  advisable  not  to  state  the  abuttals  or 
any  other  particular  description.     1  Saund.  238.  n.  2.  2  Satmd.  366.  n.  1. 


COVENANT.  Ill 

afterwards,  to  wit,  on  ,  entered  into  the  said  premises  and 

was  thereof  possessed  for  the  term  aforesaid :  («)  And  the  said 

A.  B.  avers  that  during  the  said  term,  to  wit,  on a  large  sum 

of  money,  to  wit,  the  sum  of dollars,  of  the  rent  aforesaid, 

for years  of  the  term  aforesaid,  then  elapsed,  was  and  still  is 

in  arrears  and  unpaid,  contrary  to  the  true  intent  and  meaning  of 
the  said  indenture  and  of  the  said  covenant  of  the  said  C.  D.  And 
so  the  said  C.  D.  hath  not  kept  his  covenant  aforesaid  but  hath 

broken  the  same,  to  the  damage  of  the  said  A.  B. dollars, 

\the,  amount  stated  in  the  icrWl ;  and  therefore  he  sues,  &c. 

By  T.  his  attij. 


No.  2.     The  like,  upon  articles  of  agreement. 

[Proceed  as  in  No.  1.  to  the  * on 

at by  certain  articles  of  agreement  then  and  there  made  and 

concluded  by  and  between  the  said  A.  B,  and  the  said  C.  D.  sealed 
with  their  respective  seals  and  now  to  the  Court  here  shown,  the 

said  A,  B.  did  lease  to  the  said  C.  D.  Inlot  in  the  town  of in 

the  County  of aforesaid.  Number with  the  appurtenan- 
ces thereto  belonging  for  the  term  of  one  year  commencing  the 
1st  day  of  April  then  next.  And  the  said  C.  D.  did  thereby  cove- 
nant and  agree  to  and  with  the  said  A.  B.  to  pay  liim  the  sum  of 

dollars,  at  the  expiration  of  said  term,  for  the  rent  of  said 

premises :  And  the  said  A.  B.  says  that  the  said  C.  D.  afterwards 
to  wit,  on entered  upon  said  premises  and  was  thereof  pos- 
sessed for  the  term  aforesaid :  and  the  said  A.  B.  further  says  that 
though  the  said  term  has  long  since  elapsed,  yet  the  saidC.  D.  hath 

not  paid  the  sum  of dollars  nor  any  part  thereof:     And  so 

the  said  C.  D.  hath  not  kept  his  said  covenant  but  hath  broken  the 
same;  To  the  damage,  &c.  [Conclude  as  in  No.  1. 


No.  3.      Grantee  against  Grantor,  on  covenants  ) 
of  seisin,  power  to  convey,  warranty,  &c.  ) 

[Proceed  as  in  No.  1.  to  the  *  iIk'  said 

C.    D.   on at by    his  deed  of  that    date,   scaled    with 

ills  seal  and  duly  executed  and  delivered,  and  now  to  the  Court 

(a)  If  there  be  a  condition  precedent,  performance  must  be  specially 
shown; 


112  COVENANT, 

here  shown,  in  consideration  of dollars,  bargained,  sold  and 

conveyed  to  the  said  A.  B.  his  heirs  and  assigns  a  certain  tract  of 
land,  situate  &c.  [descriptiori]  To  have  and  to  hold  the  same  to 
the  said  A.  B.  his  heirs  and  assigns  forever :  And  the  said  C.  D. 
did  by  the  same  deed  covenant  to  and  w^ith  the  said  A.  B.  his  heirs 
and  assigns  that  at  the  time  of  the  ensealing  and  delivery  of  the 
said  deed,  he  the  said  C.  D.  was  seised  in  fee  simple  of  the  afore- 
said lands,  and  had  good  right  and  lawful  authority  to  sell  and 
convey  the  same  in  manner  aforesaid,  and  that  the  said  A.  B.  his 
heir  and  assigns,  from  thence  forward,  should  by  force  of  that  deed, 
lawfully  possess  and  quietly  enjoy  the  said  premises,  free  of  and 
from  all  incumbrances;  and  also  that  he  the  said  C.  D.  his  heirs 
executors  and  administrators,  would  warrant  and  defend  the  same 
premises  to  the  said  A.  B.  his  heirs  and  assigns  against  all  lawful 
claims  whatsoever.*  And  the  said  A.  B.  avers,  that  the  said  C. 
D.  at  the  time  of  the  ensealing  and  delivery  of  the  said  deed  was 
not  seised  in  fee  simple  of  the  aforesaid  lands,  nor  had  he  then  and 
there  good  right  or  lawful  authority,  to  sell  and  convey  the  same 
in  manner  aforesaid,  nor  could  the  said  A.  B.  by  force  of  the  said 
deed,  lawfully  possess  or  quietly  enjoy  the  same,  free  of  and  from 
all  incumbrances,  nor  hath  the  said  C.  D,  warranted  and  defended 
the  same  premises  to  the  said  A.  B.  against  all  lawful  claims  what- 
soever, but  on  the  contrary  thereof  the  said  A.  B.  says,  that  at  the 
time  of  the  ensealing  and  delivery  of  the  said  deed,  the  paramount 
title  and  freehold  in  the  said  premises  was  in  other  persons  than  the 
said  C.  D.  by  virtue  of  which  said  paramount  title  the  said  A.  B. 

afterwards,  to  wit,  on at was  evicted  out  of  and  from 

the  said  premises:  And  so  the  said  C.  D.  hath  not  kept  his  said 
covenants  but  hath  broken  the  same :  To  the  damage,  &c.  (a). 
[Conclude  as  in  No.  1.] 


No.  4.     ^'issignee  of  Grantee  against  Grantor^  1 
on  covenants  of  seisin  and  xcarranty.  ^ 

[Proceed  as  in  No.  1.  to  the  * the 


(a)  All  actual  eviction  is  not  necessary  to  sustain  an  action  on  a  covenant, 
of  warranty,  when  after  a  juilgment  in  ejectment,  the  defendant  claims  tho 
benelitof  tlie  occupying  claimant  law,  and  the  case  is  thus  settled.  5  Ohio 
Rep.  154.  See,  H  Ohio  Rep.  211.  Ohio  Conds.  M'2.  1  Ohio  JRep.  S86.  Ohio 
Conds.  171.     3  Ohio  Rrp.  523.    Ohio  Conds.  G60. 


COVENANT.  113 

said  C.  D.  on at by  his  deed  of  that  date,  sealed  with 

his  s^al,  and  duly  executed  and  delivered,  in  consideration  of 

dollars  bargained,  sold  and  conveyed  to  one  I.  S.  of,  &c.  his  heirs 
and  assigns,  a  certain  tract  of  land  situate,  &c.  [description :]  to 
have  and  to  hold  the  same  to  the  said  I.  S.  his  heirs  and  assigns 
forever.  And  the  said  C.  D.  did  by  the  same  deed  covenant  to 
and  with  the  said  I.  S.  his  heirs  and  assigns,  that  at  the  time  of  the 
ensealing  and  delivery  of  the  said  deed,  he  the  said  C.  D.  was  then 
lawfully  seised  in  fee  simple  of  the  said  lands,  and  that  he  the  said 
C.  D.  would  warrant  and  defend  the  same  to  the  said  I.  S.  his  heirs 
and  assigns,  against  all  lawful  claims  whatsoever.  And  afterwards, 

to  wit,  on at the  said  I.  S.  by  his  deed  of  that  date, 

sealed  with  his  seal,  and  duly  executed  and  delivered,  and  now  to 

the  Court  here  shown,  in  consideration  of dollars,  bargained 

sold  and  convcj^ed  the  same  lands  to  him  the  said  A.  B.  to  hold  to 
him,  his  heirs  and  assigns  forever.  And  the  said  A.  B.  avers  that 
at  the  time  of  the  ensealing  and  delivery  of  the  said  deed  to  the 
said  I.  S.  he  the  said  C.  D.  was  not  lawfully  seized  in  fee  simple, 
&c.  [assign  the  breaches  of  the  coi^enants  of  seisin  and  warranty  as 
in  No.  3,  and  conclude  in  like  manner.'] 
P 


114  COVENANT. 

Pleas  in  Abatement. 

For  pleas  in  Abatement,  See,  Assumpsit^  Ante,  38. 

Pleas  in  Bar. 

For  general  principles  in  regard  to  pleas  in  Bar,  See,  Ante,  41. 

Non  infregit  Conventionem. 
In  covenant. 


And  the  said  C.  D.  comes  and  defends,  &c. 
and  says,  that  he  hath  not  broken  the  said  covenants  in  the  said 
declaration  mentioned,  or  any  or  either  of  them,  in  manner  and 
form  as  the  said  A.  B.  hath  complained  against  him;  and  of  this  he 
puts  himself  upon  the  country,  and  the  said  A.  B.  doth  the 
like.  (a). 

For  the  Forms  of  other  pleas  in  Bar,  Notice  of  set-oft',  &c.  See, 
the  same  titles,  in  Assimipsit  and  Debt,  which,  with  very  slight 
variations,  are  applicable  to  covenant. 


(a)  The  plea  of  iinn  infregit  convcnlionern,  is  only  applicable  to  cases  where 
the  plaintiff  concludes  his  declaration,  "and  so  the  defendant  has  broken 
his  covenant."  2  Jlod.  311.  For  if  the  plaintiff  conclude  his  declaration, 
"and  so  the  deft^uilaiit  hat  knot  kept  his  covenant,"  such  plea  would  be  bad; 
for  it  is  a  negative  to  a  neo^ative;  and  no  issue  is  joined,  as  it  is  only  an 
answer  argumentatively,  8  T.  R.  260.  And  it  was  admitted  in  the  same 
case,  that  where  a  party  covenants  to  do  certain  things,  and  an  action  is 
brought  against  him  for  non-performance ,  he  cannot  plead  non  injregit  con- 
ventionem; for  it  is  of  that  description.  Com.  Dig.  PL  2  F.  5.  Story  PI 
213. 


COVENANT.  116 

Verdicts. 

For  the  general  principles  in  relation  to  Trials  by  Jury  and  Ver- 
dicts, See,  ^nte,  51. 

Verdict  for  Plaintiff,  on  non  est  factum. 
In  covenant. 


This  day  came  the  parties  by  their  attor- 
nies  and  thereupon  came  a  jury,  to  wit,  E.  F.  &c.  who  being  em- 
pannelled  and  sworn,  the  truth  to  speak  upon  the  issue  joined  be- 
tween the  parties,  upon  their  oaths  do  say,  that  the  Indenture  or, 
articles  of  agreement,  or,  deed  poll,  above  mentioned,  is  the  deed  of 
the  said  C.  D.  and  they  assess  the  damages  of  the  said  A.  B.  by 

reason  of  the  breaches  of  covenant  above  assigned,  to dollars. 

Therefore  it  is  considered  that  the  said  A.  B.  recover  of  the  said 

C.  D.  the  said  sum  of dollars,  his  damages  aforesaid  in  form 

aforesaid  assessed,  and  also dollars  his  costs  in  this  behalf  ex- 
pended. 


For  the  Forms  of  other  Verdicts  and  Judgments,  See,  the 
same  titles  in  Assumpsit  and  Debt,  which  with  very  slight  altera- 
tions, are  applicable,  to  covenant. 


116  DETINUE. 


Detinue. 


The  action  of  Detinue  is,  in  general,  commenced  by  summons  or 
capias  ad  respondendum. 


I.    SuM3IONS. 

The  Summons  is  issued,  as  a  matter  of  course,  upon  filing  a  Prae- 
cipe with  the  Clerk  of  the  proper  Court.     [See,  Ante,  1.    n.  (a). 


Precipe  fok  Summons  in  Detinue. 

A.  B.  ) 

\'s.      >    In  Detinue Damages Dollars. 

C.  D.  ) 

Issue  a  summons  returnable  ^forthwith  if 
in  term  Urns,  or,  at  next  term  if  in  vacation,']  Indorse,  "Suit  brot, 
&c."  See,  anfe,  8.  note,  (a). 

T.  S.  Attij.  for  PltfT. 

To  the  Clerk  of Com.  Pleas,  or  Sup.  Court. 

Dated,  &;c. 


Writ  of  Summons, 

The  State  of  Ohio County,  ss. 

To  the  Sheriff  of  said  County  :  Greeting. 
We  command  you  to  summon  C.  D.  to  appear  before  our  Su- 
preme Court,  or.  Court  of  Common  Pleas,  of  the  County  aforesaid, 
at  the  Court  House  in  said  County,  forthwith  [  if  in  term  tiyne']  or, 
on  the  first  day  of  their  next  term  [if  in  vacation']  to  answer  unto 


DETINUE.  in 

A.  B.  in  a  plea  of  Detinue Damages dollars  :  and  have 

you  then  there  this  writ.  (a). 

Witness,  T.  T.  Chief  Judge  of  our  Supreme  Court,  or,  Presi- 
dent Judge  of  our  Court  of  Common  Pleas  aforesaid,  this day 

of A.  b. 

Attest. 

F.  C.  Clerk. 


For  the  Forms  of  an  Alias,  Phiries  and  Testatum  Summons, 
Site,  Ante,  9. 


II.  Capias  ad  respondendum. 

When  a  capias  may  be  sued  out,  See,  Ante,  10. 

Praecipe  for  Capias. 

A.  B.  ) 

vs.     >    In  Detinue Damages Dollars. 

C.  D.  ) 

Issue  a  capias  ad  respondendum  returna- 
ble forthwith  [if  in  term  timel  or,  at  the  next  term  [if  in  vacation^ 
Indorse,  "Suit  brot,  &c."  See,  Ante,  8.  Note,  (a). 

Hold  to  bail  in  the  sum  of dollars. 

To  the  Clerk  of Com.  Pleas,  or,  Sup.  Court. 

T.  S.  Atty.  for  Pltff 
Dated,  &c. 


For  the  Fo7-m  of  Affidavits,  and  Judges  order  to  hold  to  Bail, 
See,  ante,  11.  12. 

(a)  For  the  proper  endorsements  to  be  made  upon  tliis  writ,  See,  anlr,  8. 


118  DETINUE. 


Writ  of  capias  ad  respondendum. 

The  State  of  Ohio County,  ss. 

To  the  Sheriff  of  said  County :  Greeting. 
We  command  you  to  take  C.  D.  if  he  may  be  found  in  your  baih- 
■wick  and  him  safely  keep,  so  that  you  have  his  body  before  our 
Supreme  Court,  or,  Court  of  Common  Pleas,  of  the  County  afore- 
said, at  the  Court  House  in  said  County,  forthicWi,  or,  on  the  first 
day  of  their  next  term,  to  answer  unto  A.  B.  in  a  plea  of  Deti- 
nue.    Damages dollars;  and  have  you  then  there  this  writ. 

Witness,  T.  T.  Chief  Judge  of  our  Supreme  Court,  or.  Presi- 
dent Judge  of  our  Court  of  Common  Pleas  aforesaid,  this day 

of A.D. 

Attest. 

F.  C.  Clerh. 


For  the  proper  endorsements  to  be  made  upon  this  writ,  the 
Forms  of  an  Alias,  Pluries  and  Testatum  capias,  Bail  Bond  to  the 
Sheriff,  Recognizance  of  Special  Bail,  Bail  piece,  and  Appearance  of 
Defendant,  See,  Ante,  from  13  to  18, 


DETINUE.  119 


Declarations. 


For  general  principles  in  relations  to  Declarations,  See,  Declara- 
tions in  Assumpsit,  Jlnte,  20. 


County,  ss. 


'^Supreme  Court,  or,  Court  of  Conunon  Pleas: 

Term  [The  Term  to  which  the  u-rit  was 

returned,  or,   The   Term  at  which  the  cause 
was  hrot  into  Court  hy  appeal  or  certiorari.'] 
A.  D. 


A.  B.- complains  of  C.  D.  (a),  in  a  plea  of  Detinue;  for  that  the 

said  A.  B.  on (b)  at delivered  lo  the  said  C.  D.  certain 

goods  and  chattels,  to  wit,  one,  &c.  (c)  of  the  said  A.  B.  of  great 

value,  to  wit,  of  the  value  of dollars,  to  be   redelivered  by 

the  said  C.  D.  to  the  said  A.  B.  when  he  the  said  C.  D.  should  be 
thereto  requested;  {d)  Yet  the  said  C.  D.  though  he  was  after- 
wards, to  wit,  on at requested  to  deliver  said  goods  and 

chattels  to  the  said  A.  B.  hath  not  delivered  the  same  nor  any  part 
thereof,  and  still  unjustly  detains  the  same  from  the  said  A.  B, 


SecondCount 
upon  a  finding. 

—  And  also  for  that  the  said  A.  B.  on at was  law- 


fully possessed  of  certain  other  goods  and  chattels,  to  wit,  &c.  of 
great  value,  to  wit,  of  the  value  of dollars,  as  of  his  own  pro- 
perty, and  being  so  possessed  thereof,  he  afterwards,  on at 

casually  lost  the  said  goods  and  chattels,  and  the  same  aftcr- 


(fl)   SEE,aH/e.  21.  note,  [a). 

(b)  Tiie  day  is  immaterial  unless  it  constitute  part  of  tho  contract. 

(c)  For  the  necessary  certainty  in  tho  description  of  the  chattels,  Ske, 
2  Sannd.  74.  (b)  Bac.  Abg.  Detinue,  B. 

(d)  The  contract  of  bailment  must  be    truly  elated.     2  Chit.  PL  27S. 
note,  [b). 


120  DETINUE. 

wards,  to  wit,  on at came  to  the  possession  of  the  said 

C.  D.  by  finding,  (a).  Yet  the  said  C.  D.  well  knowing  the  said 
last  mentioned  goods  and  chattels  to  be  the  property  of  the  said  A. 
B.  hath  not  as  yet  delivered  the  same  or^any  part  thereof  to  the 

said  A.  B.  though  he  was  requested  on at by  the  said 

A.  B.  so  to  do;  but  he  still  unjustly  detains' the  same  from  the  said 

A.  B.    To  the  damages  of  said  A.  B. Dollars,  [The  amount 

stated  in  the  icrit]  and  thereupon  he  sues,  &c.  (b) . 

By  T.  his  Atty. 


(a)  Not  traversable. 

■  (6)  Upon  an  appeal  to  the  Common  Pleas  from  the  trial  of  the  right  of 
property  before  Justices  of  the  peace,  the  claimant  may  declare  in  Detinue. 
Stat.  Vol.  29.  p.  20G.  ^  11. 


DETINUE.  121 

Pleas  in  Abate3ient. 
For  pleas  in  Abatement,  See,  Assumpsit,  ante,  38. 

Pleas  ln  Bar. 

General  issue,  Non  detinet^ 

In  Detinue. 

And  the  said  C.  D.  comes  and  defends, 
&c.  and  says  that  he  does  not  detain  the  said  goods  and  chattels,  in 
the  said  declaration  specified,  or  any  part  thereof,  in  manner  and 
form  as  the  said  A.  B.  hath  complained  against  him,  and  of  this  he 
puts  himself  upon  the  country,  and  the  said  A.  B.  doth  the  like. 

By  S.  his  Atty. 
Q 


122  DETINUE, 


Veiidicts. 


For  the  general  principles  in  relation  to  Trials  by  Jury  and 
Verdicts,  See,  ante,  51. 

Verdict  for  plaintiff 
on  non  detinet. 


In  detinue. 


♦  This  day  came  the  parties  by  thejr 

attorneys  and  thereupon  came  a  jury,  to  wit,  E.  F.  &c.,  who 
being  empannelled  and  sworn  the  truth  to  speak  upon  the  issue 
joined  between  the  parties,  upon  their  oaths  do  say,  *  that  the 
said  C.  D.  doth  detain  the  goods  and  chattels,  or,  deeds  and  papers 
in  the  said  declaration  mentioned,  in  manner  and  form  as  the  said 
A.  B.  hath  complained  against  him  ;  and  they  find  the  goods 
and  chattels,  or,  deeds  and  papers  so  detained,  to  be  of  the  value 

of .  dollars;  and  they  assess  the  damages  of  the  said  A.  B. 

on  occasion  of  the  detention  of  said  goods  and  chattels,  or,  deeds 
and  papers  to dollars  («). 

(</)  Tliis  is  the  proper  form  of  a  verdict  where  the  jury  find  a  verdict  for 
the  whole,  in  favor  of  the  plaintiif ;  but  where  the  jury  tind  Jor  a  part  ouly, 
then  each,  article  and  its  value  nmsl  be  found  by  the  verdict.  Arch.  Furms, 
I'iO.  I  Chil.  pi.  115.  The  nature  of  this  action  requires  that  the  verdict 
and  judgfi.eiit  be  such,  that  a  specific  remedy  may  be  had  for  the  recovery 
of  the  goods  detained;  or  a  satisfaction  in  value  for  each  several  parcel,  in 
c;i?p  they  be  not  delivered.  XJ  TV.  Bl.  8.'i3.  The  verdict  in  such  case 
runs  thus:  "Upon  their  oatii,  do  say  that  the  said  C.  D.  doth  detain  the 
said  6 wo /l  above  mentioned  and  also  the  said  deed  above  mentioned,  in  man- 
ner and  f-jrin  as  the  said  A.  B.  hath  complained  against  him;  and  they  fin(J 

the  said  hoolc  so  detained,  to  be  of  the  value  of dollars,  and  the  said 

deed  to  be  of  the  value  of dollars,  and  they  assess  the  damages  of  the 

said  A.  B.  on  occasion  of  the  detention  of  said  book  and  said  deed  at 

dollars."  If  on  an  issue  as  lo  several  articles  contained  in  one  count,  the 
jury  find  no  verdict  as  to  part  of  them,  it  is  no  error,  but  the  plaintiff  is 
barred  of  his  title  to  the  tilings  omitted.  Slat.  vol.  29,  p.  SO,  J  117.  At 
Common  Law  if  the  jury  neglected  to  And  the  value  the  omission  could  not 
be  supplied  by  a  writ  of  enquiry.  This  defect  is  removed  by  the  statute 
above  cited.     In  such  case  the  form  is  thus:     "  This  day  came,  Arc, 


DETINUE.  183 

Verdict  for  defendant  ) 
on  non  detinet.  \ 

Proceed  as  in  the  last  precedent  to  the  * 
that  the  C.  D.  doth  not  detain  the  said  goods  and  chattels  of  the 
said  A.  B.,  nor  any  part  thereof,  in  manner  and  form  as  the  said 
A.  B.  hath  alleged  against  him :    Therefore  it  is  considered,  &c* 


who  being  empannelled,  &c. say  that  the  said  C.  D.  doth  detain  the 

said  goods  and  challels  in  manner  and  form  as  the  said  A.  B.  hath  com- 
plained against  him,  and  they  do  assess  the  damages  of  the  said  A.  B.  by 

reason  of  tiic  detention  thereof  to dollars  :     Therefore  it  is  considered 

that  the  said  A.  B.  ought  to  recover  of  the  said  C.  D.  the  said  goods  and 
challels  or  the  value  of  the  same,  and  also  liis  said  damages  ;  but  because 
the  value  of  the  said  goods  and  chattels  is  to  the  court  unknown,  it  is  there- 
fore ordered  that  a  jury  be  empannelled  to  ascertain  the  same;  and  thereupon 
a  jury  being  called,  come,  to  wit,  E.  F.  &.c.  who  being  emparnellcd  and 
sworn  to  enquire  of  the  value  of  the  said  goods  and  challels,  upon  their  oaths 

do  say,  that  the  said  goods  ami  challels  are  of  the  value  of dollars." 

[If  the  jury,  upon  Ihe  issue,  find  in  part  only,  yj^r  the  plaintiff,  the  verdict 
-upon  the  enquiry,  must  emnnerale  each  article  and  specify  its  value  as  before 
directed.]     Therefore  it  is  considered,  &;c. 


184  DETINUE. 


Judgments. 

For  general  principles  in  relation  to  Judgments,  Si^-e,  Assumpsitf 
ante,  60.  For  the  Forms  of  Judgments,  on  Demurrer  to  Pleas, 
Replications,  &c.  in  Abatement,  See,  Assumpsit,  ante,  60. 

No.   1.     Judgment  for  plaintiff, 
upon  general  verdict. 

[Enter  Verdict Therefore  it  is 

considered  that  the  said  A.  B.  recover  of  the  said  C.  D.  the  said 

goods  and  chattels  or  deeds  and  papers,  or  the  said  sum  of 

dollars  for  the  value  of  the  same,  if  the  said  A.  B.  cannot  have 
again  his  said  goods  and  chattels  or  deeds  and  papers,  and  also  his 
said  damages  by  the  jurors  aforesaid  in  form  aforesaid  assessed, 
and  also  his  costs  in  this  behalf  expended  taxed  to dollars. 


No.  2.     The  like,  upon  a  verdict  in  part. 

{Enter  Verdict Therefore  it  is  con- 
sidered that  the  said  A.  B.  recover  of  the  said  C.  D,  tlie  said  Booky 

or  the  said  sum  of dollars  for  the  value  of  the  (same,  if  the 

said  A.  B.  cannot  have  again  his  said  Book;  and  alsoTiie  said  Deed, 

or  the  said  sum  of dollars  for  the  value  of  the   same,  if  the 

said  A.  B.  cannot  have  again  his  said  Deed,  and  also  his  said  dama- 
ges by  the  jurors  aforesaid  in  form  aforesaid  assesed;  and  also 
his  costs  in  this  behalf  expended  taxed  t» dollars. 

/ 
No.  3.     Judgment  for  defendant. 

[Enter  Verdict Therefore  it  is  con- 
sidered that  the  said  C.  D.  go  hence  without  day  and  recover  of 
the  said  A.  B.  his  costs  herein  expended  taxed  to  ■ dollars. 


REPLEVIN.  125 


Replevin. 


The  Action  of  Replevin,  in  England,  bears  but  little  analogy, 
except  in  name,  to  the  action  of  Replevin  under  our  Statute.  It  is 
the  regular  Common  Law  mode  of  contesting  the  validity  of  a 
distress,  while  under  our  Statute,  it  is  the  appropriate  remedy 
where  one  person  wrongfully  detains  the  goods  and  chattels  of 
another.  Vol.  29.  j)-  128.  §  I.  In  England,  it  is  also  said  to  be 
an  applicable  remedy  in  some  other  instances,  than  distress,  for  an 
illegal  detention  of  personal  property.  XIV  Petersd.  Mg.  250. 
SEE,pos^,  Declarations  in  Replevin,  n.  (a). 


The  Action  is  commenced  by  filing  with  the  Clerk  of  the  Court 
of  Common  Pleas,  of  the  proper  County  the  following  Precipe  and 
Affidavit. 


PRiECiPE  AND  Affidavit. 

A.  B.  ) 

vs.     >  In  Replevin.  Damages dollars. 

C.  D.  ) 

Issue  a  writ  of  Replevin  for  the  following 
goods  and  chattels,  to  wit,  [jffere  describe  the  articles.'\ 

T.Atty.forpltff. 

To  the  Clerk Com.  Picas. 

Dated,  &c. 


AFFiDAVir-: — »-  The  a^)ove  named  A.  B.  mq.kes  oath  and  sa 
that  he  has  good  right  to  tiie  possession  of  the  goods  and  chattCTs 
described  in' thd  af)(^'e.JP4-cecipe,.an.d,  that  the  same  are  wrongfully 


12G  REPLEVIN. 

detained  by  the  said  C.  D.  and  that  the  said  goods  and  chattels  were 
not  taken  in  execution  on  any  judgment  against  the  said  A.  B.  nor 
for  the  payment  of  any  tax,  fine  or  amercement  assessed  against 
him  (a).^ 

Sworn  to,  &c. 

A,B. 


Writ  of  Replevin.' 

The  State  of  Ohio •  County,  ss. 

To  the  Sheriff  of  said  County  :  Greeting. 

We  command  you,  that  without  delay  you  cause  to  be  replevied 
unto  A.  B.  the  goods  and  chattels  following,  to  wit,  [Here  describe 
the  property  precisely  as  in  the  Praecipe']  which  C.  D.  wrongfully 
detains  from  the  said  A.  B.  as  is  said;  and  also  that  you  summon  the 
said  C.  D.  to  appear  at  the  next  term  of  our  Court  of  Common 

Pleas  to  be  held  within  and  for  the  said  County  of to  answer 

unto  the  said  A.  B.  for  the  unlawful  detention  of  the  goods  and 

chattels  aforesaid :  Damages dollars ;  \The  amount  stated  in 

the  Praecipe']  and  have  you  then  there  this  writ. 


Witness,  T.  T.  President  Judge  of  our  said  Court  this day 

of A.  D. {h). 

Attest. 

T.  C:  Clerk. 


^  (a)  This  affidavit  must  always  be  filed  with  the  praecipe,  otherwise  the 

writ  may  be  quashed  at  the  costs  of  the  Clerk;  ana  the  Clerk  as  well  as  the 
plaintiff,  will  be  liable  in  damages,  t©  the  party  injured.  Stat.  Fb/.  29.  |7. 
128  \  1. 

[h)  The  Statute,  Sec.  6.  provides  that  on  the  return  of  the  writ,  the  suit 
shall  be  subject  to  the  same  usages  and  rules  of  practice,  as  other  cases. 
Quere:  can  an  alias  and  iilurics  issue,  or  can  the  plaintiffprosecute  his  action 
for  damages,  the  property  not  being  taken. 

/T-   J^r'   ^  ^il^tj^^^    ^^'^y  rp^^ 


7 


REPLEVIN.  127 

The  Sheriff,  in  the  execution  of  this  writ,  may  break  open  any 
house,  stable,  out-house,  or  other  building,  in  which  the  property 
may  be  concealed;  having  first  made  a  demand  of  such  property, 
and  of  entrance  into  such  building,  and  the  same  being  refused. 
Stat.  Vol.  29.  p.  128.  §  3. 


Before  the  property  is  delivered  to  the  plaintiff,  he  must  execute 
.a  bond  to  the  defendant,  with  two  or  more  responsible  freeholders 
of  the  County,  as  security,  in  double  the  value  of  the  property, 
conditioned  that  the  plaintiff  will  appear  at  the  return  term  of  the 
writ,  and  prosecute  his  suit  to  effect,  and  pay  all  costs  and  dama- 
ges which  shall  be  awarded  against  liim.  The  value  of  the  property 
is  to  be  ascertained  by  the  oaths  of  two  or  more  disinterested  per- 
sons, which  oaths  the  sheriff,  or  officer  executing  the  writ,  is  au- 
thorised to  administer.     Stat.  Vol.  29.  p.  128.  §  4. 


Form  of  Replevin  Bond. 

Know  all  men  by  these  presents  that  we  A.  B.  E.  F.  and  G.  H. 
of  &c.  are  held  and  firmly  bound  unto  C.  D.  in  the  penal  sum 

of dollars  \_Douhle  the  value  of  the  property']  to  the  payment 

of  which  well  and  truly  to  be  made,  we  do  hereby  jointly  and 
severally  bind  ourselves,  our  heirs,  executors  and  administrators 
sealed  with  our  seals  and  dated  this day  of A.  D. 

The  condition  of  the  above  obligation  is  such,  that  whereas  the 

said  A.  B.  on sued  out  of  the  Court  of  Common  Pleas  of  the 

said  County  of a  writ  of  replevin  against  the  said  C.  D.  for 

the  following  goods  and  chattels,  to  wit,  [Here  describe  them]  and 

which  said  writ  is  returnable  at  the  next term  of  said  Court; 

Now,  if  the  said  A.  B.  shall  appear  at  the  next  term  of  said  Court 
and  prosecute  his  said  suit  to  effect,  and  pay  all  costs  and  dama- 


128  REPLEVIN. 

ges  which  shall  be  awarded  against  him,  then  this  obligation  shall 
be  void,  otherwise  in  full  force,  {a). 

[Seal.] 

Signed,  &c.  [Seal.J 

[Seal.] 

This  bond  is  returned  with  the  writ  for  the  benefit  of  the  defend- 
ant.    Stat.  Vol.  29.  p.  128.  §  4. 


(a)  Quere:  Is  it  necessary  that  the  hand  be  executed  by  the  Plaintiff.  It 
would  5<  em  to  be  analogous  to  Injunction  Bonds,  Appeal  Bonds,  Sec.  in  re- 
gard to  wnich  it  is  well  settled  that  the  bond  is  good  without  being  executed 
by  the  Plaintiff. 


REPLEVIN.  129 


Declarations. 

rCourt  of  Common  Pleas : Term  [The 

' County,  ss.         <  Term   to    ivhich  the   icrit  was    returned] 

\a.  D. 

A.  B.  complains  ofC.  D.  in  a  plea  of  Replevin,  for  that  the  said 

C.  D.  on at was  possessed  of  certain  goods  and  chattels 

of  the  said  A.  B.  to  wit,  [Here  desn-ibe  the  articles  as  in  the  writ"] 
to  be  delivered  to  the  said  A.  B.  when  he  the  said  C.  D.  should  be 
thereto  afterwards  requested  :  Yet  the  said  C.  D.  though  reques- 
ted so  to  do,  has  not  delivered  the  said  goods  and  chattels  nor  any 
part  thereof  to  the  said  A.  B.  and  so  the  said  C.  D.  wrongfully  de- 
tains the  same  from  the  said  A.  B.     To  his  damage dollars 

[The  amount  stated  in  the  writ']  and  thereupon  he  sues,  &c.  {a). 

By  T.  hisAttij. 


(a)  The  action  of  Replevin,  under  our  iStatute,  Vol.  29, p.  128.  is  entire- 
ly difTorent,  in  all  its  essential  features,  from  the  same  action  in  England. 
In  England  the  orig:inal  lakinff  must  be  illrp^ul,  and  the  action  is  there  sel- 
dom resorted  to  except  \n  cusp.s  of  inilav/td  distress.  1  C'hil.  P/.  140.  But 
under  our  Statute  the  uu-onic/ul  dc/aiiur,  is  the  gist  of  the  action,  and  it 
seems  wliolly  unnecessary  to  enquire,  whether  the  ori;(inal  taking  were  by 
richtorby  wrong,  by  fraud  or  by  bailment,  any  furtlier  than  as  such  ong/?ia^ 
l(i/i:inir  miiy  goto  show  tlic  ivrong-fnlncss  oi^  the  tl( 'diner.  The  late  revised 
Statute  of  Nor- York  regulating  tlie  action  of  Replevin,  (Jo/.  2.  p.  521.) 
like  our  .Statute,  authorises  the  action  to  be  brougiit  upon  a  wrongful  de- 
taiacr.  It  provides  that  "wherever  any  goods  or  chatties  shall  have  been 
lorongfidiij  distrained  or  otliervvise  tvrongfiilh/  taken  or  shall  be  irrongfuUij 
detained,  an  action  oflleplevin  may  be  brougiit, «^c."  The  Act  then  points 
out  two  modes  of  proceeding,  one  when  the  wrong fal  taking,  and  the  other 
when  the  icrongfnl  detainer,  constitutes  the  foundation  of  the  action;  and 
declares  what  allegations  the  Declaration,  in  each  case,  shall  in  substance 
contain.  The  above  precedent  is  from  the  Statute  of  j\ew-York;  from 
which  our  Statute,  as  last  revised,  seems  in  part  to  have  been  taken.  The 
Law  ofNew-l'ork,  as  wcUas  our  own  Act,  is  silent  as  to  a  demand  before 
action  brought.  In  some  cases,  sucli  demand  is  obviously  proper,  and  it  is 
I)erhaps  safest  to  make  a  demand  in  all  cases.  It  seems  (o  be  unnecessary 
iiowever,  to  allege  such  demand  in  the  declaration,  inasmucli  as  the  allega- 
tion of  unlawful  detainer,  cannot  be  substantiated,  wiljiout  jiroving  a  demand, 
whenever  sucli  demand  is  held  necessary  to  constitute  a  cause  of  action.  In 
.Massaeluisctis,  it  is  held,  that  a  demand,  made  by  tiie  SherilT,  at  the  request 
of  the  Plaintid",  aflerihc  writ  has  been  delivered  to  him,  and  before  ecrving 
it,  is  sulFicicnt.     15  .l/a*<.  J35!). 

R 


lU  REPLEVIN. 


Pleas  in  Abatement. 

For  pleas  in  Abatement,  See,  Assumpsit,  Ante,  38. 

Pleas  in  Bar. 

For  General  principles  in  regard  to  pleas  in  Bar,  See,  Ante,  41. 

No.  1.     Non  detinet. 

In  Replevin. 


And  the  said  C.  D.  comes  and  defends,  &c. 
and  says  that  he  does  not  wrongfully  detain  the  goods  and  chattels 
specified  in  the  declaration,  or  any  part  thereof  in  manner 
and  form  as  therein  alleged,  and  of  this  he  puts  himself  upon  the 
country,  &c.  and  the  said  A.  B.  doth  the  like.  (a). 


(a)  This  plea  is  also  taken  from  the  Revised  Laws  of  New-York.  Vol.  2. 
p.  529.  540.  See,  a?«'e,  129.  note{a).  It  may  be  questionable  whether  the 
plea  of  7307*  cepit,  would  not  be  bad  on  demurrer,  under  our  Statute,  or  the 
issue  joined  upon  it  hnmalerial.  In  England,  non  cepit  is  a  good  plea,  when 
the  defendant  has  not  in  fact  taken  the  goods,  as  in  the  case  of  a  Pound- 
Keeper,  who  has  merely  received  them  into  the  pound;  Cowp,  476;  and 
where  the  place  of  taking  is  mistaken,  this  plea  is  sufficient.  1  Sound.  347. 
n.  1.  Under  our  Statute,  the  original  taking-  does  not  constitute  the  grounds 
of  complaint,  but  the  wrongful  detainer  alone.  It  is  Irue  that  if  the  goods 
were  never  taken,  in  any  sense  of  that  term,  by  the  defendant,  he  could  not 
be  said  to  be  guilty  of  a  wrongful  detainer;  but  the  word,  taken,  as  used  in 
the  plea  of  ?io«  cepit,  is  intended  to  put  in  issue  the  fact  of  wrongful  taking, 
independant  of  any  subsequent  detainer.  The  plaintiff  also  must  necessarily 
prove  the  goods,  in  the  possession  of  the  defendant,  as  a  part  of  his  case, 
under  the  above  plea  of  JVb7i  detinet. 


REPLEVIN.  131 

No.  2.     Property  in  the  defendant. 

In  Replevin. 


And  the  said  C.  D.  comes  and  defends,  <fec. 
and  says  that  the  said  A.  B.  ought  not  to  have  his  aforesaid  action 
against  him  because  he  says,  that  at  the  time  when  the  wrongful 
detaining  of  the  said  goods  in  the  declaration  mentioned  is  supposed 
to  be,  the  property  in  the  same  goods  was  in  him  the  said  C,  D. 
and  not  in  the  said  A.  B.  and  this  he  is  ready  to  verify;  wherefore 
Ite  prays  judgment  if  the  said  A.  B.  ought  to  have  his  said  action 
against  him,  &c  (a). 


(a)  Qiiere  :  Whether  the  above  plea,  or  that  of  property  in  a  stranger,  is 
necessary  or  proper  under  our  Statute.  In  England  such  a  plea  is  adTnissi- 
ble  because  if  the  jury  find  it  true,  the  defendant  has  a  judjrment  for  thcs 
return  of  the  specific  g'oods;  rclorno  hahendo.  1  Esp.  JV.  P.  351.  No 
avowry  or  coofnizance  for  return  need  be  made  in  these  pleas;  for  they  dis- 
affirm the  plaintiff''s  property,  and  a  return  follows  of  course.  Story  PL 
380.  Our  Statute  not  only  makes  no  provision  for  the  return  of  the  goods, 
but  expressly  declares,  [Sec  7.)  "that  in  all  cases,  upon  issue  joined,  when 
the  jury  shall  find  for  the  defendant,  they  shall  also  find,  whether  the  defend- 
ant had  tlie  right  of  properly  in  the  goods  and  cliattels,  or  the  right  of  pos- 
session oiilij,  at  the  commencement  of  the  suit,  and  if  they  shall  find  either 
in  his  favour,  they  shall  assess  euch  damages  as  they  may  think  right  and 
proper,  &c."  Hence  it  would  seem,  that  whatever  the  issue  may  bs,  the 
jury,  if  they  find  for  the  defendant,  must  also  find  whether  the  right  of  pro' 
perty,  or  the  right  of  possession;  was  in  the  defendant.  Besides,  is  the  right 
of  property  necessarily  made  a  question  under  our  Statute.  May  not  ths 
right  of  property,  in  fact  be  in  tiie  defendant  or  a  stranger,  and  the  plaintiff 
still  have  the  right  oj possession;  and  if  that  possession  be  wrongfully  detained 
by  the  defendant,  will  his  right  of  property  bar  the  action.  The  Statute 
requires  the  plaintiff  to  make  affidavit,  "that  he  ha.a  good  right  to  the possei' 
sion^^  but  is  silent  as  to  t\\c  right  of  property. 


132  REPEEVIN. 


Verdicts. 


For  the  general  principles  in  relation  to  Trials  by  Jury  and 
Verdicts,  See,  Ante,  51. 


No.  1.      Verdict  for  Plaintiff  ) 
on  non  detinet.      \ 

A.  B.    ^ 

vs.       >    In  Replevin. 
C.  D.    ) 

This  day  came  the  parties  by  their  attor- 
nles,  and  thereupon  came  a  jury,  to  wit,  E.  F.  &c.  who  being  em- 
pannelled  and  sworn,  the  truth  to  speak  upon  the  issue  joined  be- 
tween the  parties,  upon  their  oaths  do  say,  that  the  said  C.  D. 
doth  detain  the  goods  and  chattels  of  the  said  A.  B.  in  manner 
and  form  as  the  said  A.  B.  hath  complained  against  him;  and  they 
assess  the  damages  of  the  said  A.  B.  by  reason  of  the  premises 
to dollars;  Therefore  it  is  considered,  &c.  (a). 


No.  2.      Verdict  for  plaintiff,  on  default. 
Damages  assessed  by  Juj-y. 

A.  B.    ^ 

vs.       >    In  Replevin. 


C.  D. 


This  day  came  the  said2A/'B.  by  his  attor- 


(a)  The  charge  in  the  ])eclaration,  and  the  finding  in  the  verdict,  "that 
the  defendant  doth  detain  the  goods,  &o."  is  not  literally  true;  because  the 
goods,  on  the  service  of  the  original  writ,  are,  in  fact,  delivered  to  the 
Plaintiff;  but  a  kind  of  legal  possession  must  be  supposed  to  continue  in  the 
defendant. 


REPLEVIN.  133 

ney  and  the  said  C.  D.  though  solemnly  called  came  not  but  made 
default;  whereupon  it  is  considered  that  the  said  A.  B.  ought  to  re- 
cover his  damages  against  the  said  C.  D.  by  reason  of  the  premises, 
but  because  the  said  damages  are  to  the  Court  here  unknown;  It  is 
ordered  that  a  jury  be  empannelled  to  ascertain  the  same,  and 
thereupon  a  jury  being  called  came,  to  wit,  E.  F.  &c.  who  being 
empannelled  and  sworn  to  enquire  of  the  damages  sustained  by 
the  said  A.  B.  by  reason  of  the  wrongful  detention  of  the  goods  and 
chattels  in  the  said  declaration  specilied,  upon  their  oaths  do  assess 
the  same  to Dollars :  Therefore,  &c. 


No.  3.      Verdict  for  chfendant,  on  Discontinuance,  right  of 
2)roperty,  and  right  of  possession  found  in  defendant. 

A.  B.    ^ 

vs.      >    In  Replevin. 
C.  D.    ) 

This  day  came  the  parties  by  their  attor- 
neys, and  the  said  A.  B.  thereupon  discontinues  his  suit,  *  where- 
upon the  said  C.  D.  demanding  a  jury,  a  jury  being  called  came,  to 
wit,  E.  F.  &c.  who  being  empannelled  and  sworn  to  inquire  into 
the  right  of  property  and  right  of  possession,  of  the  said  C.  D.  in  and 
to  the  goods  and  chattels  in  the  said  declaration  specified,  upon  their 
oaths  do  say,  that  at  tlie  commencement  of  this  suit,  the  rin-ht  of 
property  and  right  of  possession  in  and  to  the  said  goods  and  chat- 
tels, were  in  the  said  C.  D.  and  they  assess  the  damages  of  the 
said  C.  D.  by  reason  of  the  premises,  to dollars :  (a)  There- 
upon, &c. 


No.  4.     The  like,  on  Nonsuit. 


This  day  came,  &c.  and  the  said 

A.  B.  being  thereupon  called  comes  not,  nor  does  he  further  prose- 
cute his  suit;  whereupon,  &;c.  [Proceed  as  in  No.  3.  fro7n  the  *  to 
the  end. 


(a)  Where  the  jury  find  the  right  of  possession  merely,  in  the  defendant, 
the  Ibrm  of  the  verdict  is  the  same,  omittinjj  only,  ''right  of  property." 


134  llEPLEVIN. 

No.  5.     The  lihe,  on  demurrer  to  plea. 

A.  B.    ^ 

vs.      >    In  Replevin. 
C.  D.    ) 

This  cause  came  on  to  be  heard  upon  the 
plaintiff's  demurrer  to  the  defendant's  plea,  and  tvas  argued  hy 
counsel,  and  the  Court  being  fully  advised  in  the  premises,  are  of 
opinion,  that  the  said  plea  of  the  said  C.  D.  and  the  matters  therein 
contained,  are  sufficient  in  law  to  bar  the  action  of  the  said  A.  B. 
against  the  saidC.  D.  whereupon,  &;c.  [Proceed  as  in  No.  2.  from 
the  *  to  the  end. 


No.  6.     Issues  found  for,  and  right  of  property  and  right  of 
possession  or  either  of  them  found  in  defendant. 


In  Replevin. 


This  day  came  the  parties  by  their  attor- 
neys and  thereupon  came  a  jury,  to  wit,  E.  F.  &c.  who  being  em- 
pannelled  and  sworn  the  truth  to  speak  upon  the  issue  joined  be- 
tween the  parties,  upon  their  oaths  do  say,  that,  &c.  [Here  insert 
the  finding  of  the  jury  upon  the  issue  or  issues,'\  and  the  said  jury 
further  say,  that  the  right  of  property,  or,  the  right  of  possession, 
[or  both,  as  the  case  may  6e,]  in  and  to  the  said  goods  and  chattels, 
in  the  said  declaration  specified,  was  at  the  commencement  of  this 
suit,  in  the  said  C.  D.  and  they  assess  tke  damages  of  the  said  C. 
D.  by  reason  of  the  premises  to dollars. 


REPLEVIN.  1S& 


Judgments. 


For  general  principles  in  relation  to  Judgments,  See,  Ante,  60. 
For  the  Forms  of  Judgments,  on  Demurrer  to  Pleas,  Replications, 
&c.  in  Ahatement,^^^,  Ante,  61. 


No.  5.     Judgment  for  plaintiff ,  on  non  detinet. 

[Enter  Verdict,  No.  1.  ante,  132. There- 
fore it  is"  considered  that  the  said  A.  B.  recover  of  the  said  C.  D. 
the  said  sum  of dollars,  his  damages  aforesaid  in  form  afore- 
said assessed,  and  also  his  costs  herein  expended,  taxed  to 

dollars. 


No.  2.     The  like,  on  Default. 

[Enter  the  Verdict  No.  2.  ante,  132.  and 
then  follow  the  last  precedent  verbatim.'] 

Judgments  for  the  Defendant. 

[Enter  the  Verdict,  as  in  No.  3.  4.  5.  6. 

ante,  132.  133.  and  then  say Therefore  it  is  considered  that 

the  said  C.  D.  recover  of  the  said  A.  B.  the  said  sum  of dol- 
lars, his  damages  aforesaid  in  form  aforesaid  assessed,  and  also  his 
costs  herein  expended  taxed  to dollars. 


13G  CASE. 


Case. 


This  Action  is  in  general  commenced  by  summons  or  capias  ad 
respondendum. 


I.    Summons. 

The  summons  is  issued,  as  a  matter  of  course,  upon  filing  a 
Precipe  with  the  Clerk  of  the  proper  Court.  [See,  ante,  1, 
note  (a). 


Praecipe  for  Summons  in  Case. 

A.  B.    ) 

vs.      >    In  Case.  Damasres dollars. 

C.  D.   ) 

Issue  a  summons  returnable  [  forth- 
with, if  in  term  time,  or,  at  next  term,  if  in  vacation.'^  Indorse, 
"  Suit  brot,  &c."     See,  ante,  8.  note,  {a). 

T.  S.  Atty.  for  Pltff. 

To  the  Clerk  of Com.  Pkas,  or  Sup.  Court. 

Dated,  &c. 


Writ  of  Sujimons. 

The  State  of  Ohio County,  ss. 

To  the  Sheriffofsaid  County:  Greeting. 

We  command  you  to  summon  C.  D.  to  appear  before  our 
Supreme  Court,  or,  Court  of  Cojnmon  Pleas,  of  the  County  afore- 


CASE.  137 

said,  at  the  Court  House  in  said  County,  forthwith  [(/'  in  term  time] 
or,  on  the  first  day  of  their  next  term  [if  in  vacation']  to  answer 

unto  A.  B.  in   a   plea  of  the   case.     Damages dollars:  and 

have  you  then  there  this  writ,  (a.) 

Witness,  T.  T.  Chief  Judge  of  cur  Supreme  Cowt^  or,  President 

Judge  of  our  Court  of  Conwwn  Pleas,  aforesaid,  this day  of 

A.D. 

Attest. 

F.  C.  Clerk. 

For  the  forms  of  an  Alias,  Plurics.  and    Testatum  SummonSi 
See,  ante,  9. 


11.     Capias  ad  respo-m>enl>u3i. 

When  a  capias  may  be   sued  out,  See,  ante,  10. 

PRiBCIPE    FOR    CAPIAS, 
A.    B.    ) 

VS.     >  In  Case.  Damages dollars. 

C.  D.  ) 

Issue  a  capias  ad  respondendum 

returnable  forthwith  [if  in  term  time]  or,  at  the  next  term  [if  in 

vacation.]     Indorse,  "  Suit  brot,  &;c."     See,  ante,  8.  note,  (a). 

Hold  to  bail  in  the  sum  of dollars. 

To  the  Clerk  of Coin.  Pleas,  or.  Sup.  Court. 

Dated,  &c. 

T.  S.  atty.  for  pltff.      • 

For  the  Form  of  Affidavits,  and  Judge's  order  to  hold  to  Bail. 
See,  ante,  11,  12. 


[a)  For  the  proper  endorsements  lo  be  made  upon  this  writ,  f^r.r.,  ante,  S, 
S 


138  CASE. 

Writ  of  capias  ad  respondendum. 

The  State  of  Ohio County,  ss. 

To  the  Sheriff  of  said  County:  Greeting. 
We  command  you  to  take  C.  D.  if  he  may  be  found  in  your  baili- 
wick, and  him  safely  keep,  so  that  you  have  his  body  before  our 
Supreme  Court  or,  Court  of  Common  Pleas,  of  the  County  aforesaid, 
at  the  Court  House  in  said  County,  forthwith,  or,  on  the  first  day  of 
their  next  term,  to  answer  unto  A.  B.  in  a  plea  of  the  case 
Damages dollars ;  and  have  you  then  there  this  writ. 

Witness,  T.  T.  Chief  Judge  of  our  Supreme  Court,  or. 
President  Judge  of  our  Court  of  Common  Pleas,  aforesaid,  this 
day  of A.  D. . 

Attest. 

F.  C.   Clerk. 


For  the  proper^  endorsements  to  be  made  upon  this  writ,  the 
Forms,  of  an  Alias^  Pluries,  and  Testatum  capias,  Bail  Bond  to  the 
Sheriff,  Recognizance  of  Special  Bail,  Bail  piece,  and  Appearance 
of  Defendant,  See,   Ante  from  12  to  18. 


CASE.  139 


Declarations. 

For  general  principles  in  relation  to  Declarations,  See,  Decla- 
rations in  Assumpsit,  Ante,  20. 


No.   1.     Against  carrier  for  not 
delivering  goods,  ^^c. 


County,  ss. 


Supreme  Cotirt,  or  Court  of  Common  Pleas, 

Term.     [The  term  to  which  the  wi  it  was 

returned,  or,  the  term  at  which  the  cause  was 
brought  into  Cou7%  hy  appeal  or  certiorari,'] 
A.  D. 


A.  B.  complains  of  C.  D.  {a)  in  a  plea  of  the  case   for  that 

whereas  *  the  said  C.  D.  on and  long  before,  was,  and  ever 

since  hath  been,  a  common  carrier  of  goods  and  chattels,  and  dur- 
ing all  that  time  hath  been  used  to  carry  for  hire,  the  goods  and 
chattels  of  all  persons  whatever,  requesting  thereto,  from  Q,  to  X, 
and  thence  back  again  to  Q,.  And  whereas  by  the  laws  and  cus- 
tom of  the  land,  every  common  carrier,  who  receives  any  goods 
and  chattels  of  any  person,  for  hire,  to  carry  the  same,  is  bound  to 
carry  the  same  without  diminishing  or  losing  any  part  thereof,  so 
that  no  damage  whatever  may  happen  thereto,  by  default  of  such 

common  carrier,  or  his  servant;  and  whereas  the  said  A.  B.  on 

at was  possessed  of as  of  his  proper  goods  and  chat- 
tels, and  being  so  possessed  thereof,  on  the  same  day,  at de- 
livered to  said  C.  D.   said  goods,  to  carry  them  safely  from 

to .  aforesaid,  and  then  to  be  deUvered  to  the  said  A.  B.  and 

the  said  C.  D.  then  and  there  had  and  received  the  said  goods,  to 
be  carried  and  delivered  in  manner  above  set  forth  :  Yet  the  said 
C.  D.  hath  never  delivered  the  said  goods  to  the  said  A.  B.  as  he 
ought  to  have  done  :  but  on  the  contrary  thereof,  the  said  goods, 
afterwards,  on at were  wholly  lost  for  want  of  due  care 


[a)  Sek,  Ai.te.,  21,  nolc  (a). 


140  CASE. 

and  preservation  by  the  said  C.  D.     To  the  damage  of  the  said  A. 

B. dollars  [The  amount  stated  in  the  itv?'/]  and  thereupon  he 

syes,  &c.  («). 


No.  2.     For  immoderately  riding  a  horse.. 

[Proceed  as  in  No.  1.  to  the  * the  said 

C.  D.  on at hired  of  the  said  A.  B.  a  certain  horse  of 

the  said  A.  B.  to  ride  from  A.  to  B.  and  back  again,  for  a  certain 
sum  of  money  between  them  agreed  upon,  and  the  said  A.  B.  then 
and  there  delivered  to  the  said  C.  D.  the  said  horse  to  ride  as  afore- 
said; and  the  said  C.  D.  the  said  horse  then  and  there  so  immoder- 
ately rode,  that  by  reason  thereof,  and  for  v/ant  of  due  care  of  said 

horse,  the  said  horse  afterwards,  on died :  To  the  damage,  &c. 

[Conclude  as  in  No.    1. 


No.  3.     Par  falsely  warranting  ) 
a  horse  to  he  sound.  ) 

[Proceed  as  in  No.  1 .  to  the  * the 

said  A.  B.  on  at bargained  with  the  said  C.  D.  to  buy  of 

him  a  certain  gelding  of  the  said  C.  D.  and  the  said  C.  D.  well 
knowing  the  same  gelding  to  be  infirm,  unsound  and  infected  with 
a  certain  distemper,  called  the  glanders,  by  then  and  there  war- 
ranting the  said  gelding  to  be  sound  and  free  from  any  distemper 
whatever,  then  and  there  deceitfully  sold  the  said  gelding  to  the 

said  A.  B.  for  the  sum  of dollars  ;  which  said  gelding,  at  the 

time  of  the  sale  thereof,  was,  and  from  that  time  to  the  time  of  the 
death  of  said  gelding,  continued  infirm,  unsound,  and  infected  with 
said  distemper,  to  wit,  at,  &c.  And  so  the  said  C.  D.  falsely  and 
fraudulently  deceived  the  said  A.  B.  To  his  damage,  &c.  [Con^' 
elude  as  in  No.  1.]  2  Went.  127. 


(a)  .Tudgment  was  arrested  in  this  case,  af;er  verdict;  because  trover  wag 
joined  in  the  same  declaration.  I  Saik.  10.  1  Sid.  <;44.  But  quere,  con- 
tra.   2  Wils.  319.     OL  Pre::.  29?. 


CASE.  141 

No.  4.     For  charging  the  Plaintiff  with  Perjury. 

[Proceed  as  in  No.  1 .  to  the  * the  said 

A.  B.  is  and  always  has  been,  a  good  and  faithful  citizen  of  the 
State  of  Ohio,  and  has  sustained  a  fair  character  among  his  neigh- 
bours for  integrity,  and  has  never  been  guilty  or  suspected  of  the 
atrocious  crime  of  false  swearing  and  perjury  ;  bujt,  the  said  C.  D. 
not  ignorant  of  the  premises,  and  contriving  and  intending  mali- 
ciously and  wickedly  to  injure  and  destroy  his  character,  to  bring 
him  into  disgrace  among  his  neighbours,  and  to  expose  him  to  the 

penalties  of  the  law  for  perjury,  did  on  or  about  the day 

of at utter  and  publish  in  the  hearing  of  sundry  persons, 

the  following  false,  and  scandalous  words,  of  and  concerning  the 
plaintiff*  to  wit ;  You  (meaning  the  said  A.  B.)  are  a  foresworn 
rascal :  You  (meaning  the  said  A.  B.)  are  a  perjured  villain : 
You  (meaning  the  said  A.  B.)  are  perjured :  You  (meaning  the 
said  A.  B.)  are  a  perjured  scoundrel  and  I  (meaning  the  said  C.  D.) 
can  prove  it:  By  means  of  publishing  which  false  and  scandalous 
words,  the  said  A.  B.  is  greatly  injured  in  his  good  name  and 
reputation,  and  has  been  rendered  liable  to  a  prosecution  for  per- 
jury :  («)  To  his  damage,  &c.  [Conclude  as  in  No.  1. 


(a)  Seperate  eets  of  words  may  be  laid  in  the  same  count.     '3  Ohio  Rep. 
40P.     OlioConds.&lS.      Lill.  Ent,  18. 


142  CASE. 

Pleas  in  Abatement. 

For  pleas  in  Abatement,  See,  Assumpsit,  Ante,  38. 

Pleas  in  Bar. 

For  general  principles  in  regard  to  pleas  in  Bar,  See,  ^nte,  41  . 

General  Issue ;  Not  Guilty. 

C.  D.    ^ 

ads.       >    In  Case. 
A.  B.    ) 

And  the  said  C.  D.  comes  and  defends,  &c. 
and  says,  that  he  is  not  guilty  of  the  said  supposed  grievances  laid 
to  his  charge,  in  manner  and  form  as  the  said  A.  B.  hath  complain- 
ed against  Mm;  and  of  this  he  puts  himself  upon  the  country,  and 
the  said  A.  B.  doth  the  like. 

,      By  T.  his  Atty. 


CASE.  143 


Verdicts. 


For  the  general  principles  in  relation  to  Trials  by  Jury  and  Ver- 
dicts, See,  .^nie,  51. 


Verdict  for  Plaintiff,  on 
plea  of  Not  Guilty. 

A.  B.  ^ 

vs.     >    In  Case. 
C.  D.  ) 

This  day  came  the  parties  by  their  attor- 
nies  and  thereupon  came  a  jury,  to  wit,  E.  F.  &c.  who  being  em- 
pannelled  and  sworn,  the  truth  to  speak  upon  the  issue  joined  be- 
tween the  parties,  upon  their  oaths  do  say  *  that  the  said  C.  D.  is 
guilty  in  manner  and  form  as  the  said  A.  B.  hath  complained  against 
him,  and  they  assess  the  damages  of  the  said  A.  B.  by  reason  of  the 
premises  to dollars :  Therefore  it  is  considered,  &c. 


Tlie  like,  for  Defendant. 

[Proceed  as  in  the  last  precedent  to  the  * 

that  the  said  C.  D.  is  not  guilty  in  manner  and  form  as  the  said  A. 
B.  hath  complained  against  him :  Therefore,  &c. 


Judgments. 

For  the  Forms  of  Judgments,  on  Demurrer,  Non-suit,  Abate- 
ment, Default  &c.     See,  same  Titles,  in  Assiimpsit. 


144  CASE. 


Judgment  for  Plaintiff  on 
Verdict  of  Guilty. 


[Enter  the  Verdict,  as  above Therefore 

it  is  considered  that  the  said  A.  B.  recover  of  the  said  C.  D.  the 

said  sum  of dollars,  his  damage  aforesaid  in  form  aforesaid 

assessed,  and  also  his  costs  herein  expended  taxed  to  ■ dollars. 


Judgment  for  Defendant,  on  ) 
Vei'dict  of  'Not  Guilty.  \ 

[Enter  the  Verdict  as  above Therefore 

it  is  considered  that  the  said  C.  D.  go  kence  without  day  and  re- 
cover of  the  said  A.  B.  his  costs  herein  expended  taxed  to 

dollars. 


TROVER.  145 


Trovbk. 


The  action  of  Trover  is,  in  general,  commenced  by  summons  or 
capias  ad  respondendum. 


L  Summons. 

Tlie  Summons  is  issued,  as  a  matter  of  course,  upon  filing  a  Prae- 
cipe with  the  Clerk  of  the  proper  Court.     [See,  Ante,  7.    n.  (a). 


Pk^sicipe  for  Summons  en  Thover. 

A.  B.  i 

vs.      >    In  Trover Damages Dollars. 

C.  D.  ^  ^ 

Issue  a  summons  returnable  ^forthwith  if 
in  term  time,  or,  at  next  term  if  in  vacation^  Indorse,  "Suit  brot, 
&c."  See,  ante,  8.  note,  (a). 

T.  S.  Atti/.  for  Pltff. 

To  the  Clerk  of Com.  Pleas,  or  Sup.  Court. 

Dated,  &c. 


Writ  of  Summons. 

The  State  of  Ohio County,  ss. 

To  the  Sherift'of  said  County  :  Greetino. 

We  command  you  to  summon  C.  D.  to  appear  before  our  Su- 
preme Court,  or,  Court  of  Cojmnon  Picas,  of  the  County  aforesaid, 
at  the  Court  House  in  said  County,  forthwith  [  if  in  term  time']  or, 
on  the  first  day  of  their  next  term  [if  in  vacation']  to  answer  unto 
T 


146  TROVER. 

A.  B,  in  a  plea  of  Trover Damages dollars  :  and  have 

you  then  there  this  writ.  (a). 

Witness,  T.  T.  Chief  Judge  of  our  Supreme  Court,  or,  Presi- 
dent Judge  of  our  Court  of  Common  Pleas  aforesaid,  this day 

of A.  D. 

Attest. 

F.  C.  Clerk. 


For  the  Forms  of  an  Alias,  Pluries  and   Testatum  Summons 
See,  Ante,  9. 


II,  Capias  ad  REsroNOENDUM, 
When  a  capias  may  be  sued  out,  See,  Ante,  10. 

Precipe  foh  Capias. 

A.  B.  ^ 

vs.     >    In  Trover Damages  - — -  Dollars. 

C.  D.  ) 

Issue  a  capias  ad  respondendum  returna- 
ble forthwith  \if  in  term  time']  or,  at  the  next  term  \jf  in  vacation'] 
Indorse,  "Suit  brot,  &c."  See,  J.r2,fe,  8.  Note,  (a). 

Hold  to  bail  in  the  sum  of dollars. 

To  the  Clerk  of Com.  Pleas,  or.  Sup.  Court. 

T.  S.  Atty.  for  Pltff. 
Dated,  &c. 

For  the  Form  of  Affidavits,  and  Judges  order  to  hold  to  Bail' 
See,  ante,  11.  13. 

For  the  proper  cndorsementa  to  be  made  upon  this  writ,  See,  arUe,  8. 


TROVER.  '  14T 

Writ  of  capias  ad  respondendum. 

The  State  of  Ohio County,  ss. 

To  the  Sheriff  of  said  County :  Greeting, 
We  command  you  to  take  C.  D.  if  he  may  be  found  in  your  baih- 
wick  and  him  safely  keep,  so  that  you  have  his  body  before  our 
Supreme  Court,  or.  Court  of  Common  Pleas,  of  the  County  afore- 
said, at  the  Court  House  in  said  County,  forthwith,  or,  on  the  first 
day  of  their  next  term,  to  answer  unto  A.  B.  in  a  plea  of  Tro- 
ver.    Damages dollars;  and  have  you  then  there  this  writ. 

Witness,  T.  T.  Chief  Judge  of  our  Supre?ne  Court,  or,  Presi- 
dent Judge  of  our  Court  of  Common  Pleas  aforesaid,  this day 

of A.  D. 

Attest. 

F.  C.  Clerk. 


For  the  proper  endorsements  to  be  made  upon  this  writ,  the 
Forms  of  an  Alias,  Pluries  and  Testatum  capias.  Bail  Bond  to  the 
Sheriff,  Recognizance  of  Special  Bail,  Bail  piece,  and  Appearance  of 
Defendant,  See,  Ante,  from  1 1  to  18. 


148  TROVER. 


Declarations. 


For  general  principles  in  relations  to  Declarations,  See,  Declara 
tions  in  Assumpsit,  Ante,  20. 


No.   1.     Common  Counts  for  cattle, 
honds,  deeds,  &c. 


^Supreme  Court,  or,  Court  of  Common  Pleas: 

Term  [The  Term  to  ichich  the  writ  was 

County,  ss.     >  returned,  or,   The   Term  at  ivhich  the  cause 
was  brot  into  Court  by  appeal  or  certiorari.'] 
lA.  D. 


A.  B.  complains  of  C,  D.  (a),  in  a  plea  "of  Trover,  for  that 

whereas  the  said  A.  B.  on at was  lawfully  possessed, 

as  of  his  own  property,  (b)  of  certain  cattle,  deeds,  bonds,  promis- 
sory notes,  bank  notes,  goods  and  chattels,  to  wit :  ten  horses,  ten 
mares,  ten  geldings,  ten  bulls,  ten  cows,  &c.  \_stoting  the  several 
hinds  of  cattle]  and  also  a  certain  deed,  dated,  &c.,  (c)  pm'porting 
to  be  a  conveyanqp  from  the  said  C.  D.  to  the  said  A.  B.  of  certain 
tenements  therein  mentioned ;  and  a  certain  bond  sealed  with  the 
seal  of  the  said  C.  D.  whereby  he  became  bound  to  the  said  A,  B. 

in  the  penal  sum  of dollars,  and  then  and  yet  in  full  force  ;  and 

a  certain  promissory  note  made  by  the  said  C.  D.  whereby  he 

;-)ro-,r.i-ori  to  pay  the  said  A.  B.  or  oider dollars  at  a  certain 

n  mentioned  and  now  past;  and  also  divers,  to  wit:  ten 
n.  t  ;     ,:  the  President,  Directors,  and  Company  of  the  Bank  of 


(a)  See,  a?(/e.  21.  no!e,{a). 

(6)  As  to  this  allegation,  See,  8.  T.  B.  294,  399.  2  Sound.  47.  i.  Ic.  In 
Selwyn,  JV.  P.  11.57,  note  10,  it  is  said  the  omission  is  aided  by  verdict, 
but  not  by  judgment  by  default.  2  Chill.  PI.  358. 

(c)  It  is  unnecessary  to  allege  the  date.  1  Wils.  116.  Bac.  ^Q'>?.  Trove)-. 
F.  Ld.  Rnym.  2T6.   !<aU:.  0^)4. 


TROVER.  149 

the  United  States,  commonly  called  bank  notes,  (a)  for  the  pay- 
ment of dollars  each  ;  and  also  divers,  to  wit :  ten  pieces  of 

the  current  coin  of  the  United  States,  commonly  called  dollars  [^or 
half  dollars,  quainter  dollars,  eagles,  crowns,  ^-c]  ;  and  also  cUvers, 
to  wit :  ten  tables,  ten  chairs,  &c.  [specifying  the  articles,  and 
describing  each  as  generally  as  possible,  omitting  the  quality,  as 
^'■mahogony,  black  walnut,  ^-c"  (i)]  of  great  value,  to  wit :  of  the 

value  of dollars.     And  being  so  possessed,  the  said  A.  B. 

afterwards  on  the  same  day  lost  the  same,  and  the  same  after- 
wards on  the  same  day  came  into  the  possession  of  the  said  C.  D. 
by  finding :  Yet  the  said  C.  D.  though  he  well  knew  the  same  to 
belong  to  the  said  A.  B.  yet  intending  to  injure  and  defraud  liim 
thereof,  refused  to  deliver  the  same  to  the  said  A.  B.  though 
thereto  requested,  but  afterwards  on  the  same  day,  converted  the 
same  to  the  use  of  the  said  C.  D.  to  the  damage  of  the  said  A.  B. 
dollars :  and  thereupon  he  sues,  &c. 

By  T.  his  atty. 


No.  2.     By  administrators,  for  property 
belonging  to  the  Intestate. 

[Commence  as  in  No.  1. — A.  B.  as 
administrator  of  E.  F.  complains  of  C.  D.  for  that  whereas  the 

said  A.  B.  as  administrator  as  aforesaid,  on  at  was 

lawfully  possessed  of,  &c.  the  property  of  said  intestate  ;  and 
being  so  possessed  then  and  there  lost  the  same;  and  afterwards, 
there,  on  the  same  day,  the  same  goods  came  to  the  possession  of 
the  said  C.  D.  by  findmg;  (c)  yet  the  said  C.  D.  ttc.  [Conclude 
as  in  No.  1.] 


{(1)  This  is  a  sufficient  description.    2  Rich.  C.  P.  161.  2  Chil.  PI.  HoS. 
(6)   Tidd  Prac.  560.     Barnes  :3:35.     2  Chit.  PI.  SoO. 

(c)  If  trover  were  first,  and  administration  afterwards,  the  plaintiff  may 
declare  specially,  or  lay  trover  nfler  the  administration.  Comb.  .'304.  .VoJ. 
Ent.  3G().  The  executor  has  a  conEtiiictive  pofseseion  from  (he  testator's 
death.    1  T.  li.  J^(t. 


150  TROVER. 

Pleas  in  Abatement. 

For  Pleas  in  Matement,  See,  Assumpsit,  ante,  38. 

Pleas  in  Bar. 

For  general  principles  in  regard  to  pleas  in  bar,  See,  ante.  41. 

General  Issue,  Not  Guilty. 
In  Trover. 


And  the  said  C.  D.  comes  and  defends,  &.C. 
and  says  that  he  is  not  guilty  of  the  said  supposed  grievances 
laid  to  his  charge  in  manner  and  form  as  the  said  A.  B.  hath 
complained  against  him  ;  and  of  this  he  puts  himself  upon  the 
country,  &c.  and  the  said  A.  B.  doth  the  like. 

By  S.  his  attt/. 


TROVER.  isi 


Verdicts. 


For  the  general  principles  in  relation  to  trials  by  verdicts,  &:c. 
See,  ante.  51. 


Verdict  for  Plaintiff  on 
plea  of  Not  Guilty. 

A.  B.     ) 

vs.      >    In  Trover. 
C.  D.    ) 

This  day  came  the  parties  by  their 
attorneys,  and  thereupon  came  a  jury,  to  wit:  E.  F.  &c.  who 
being  empannelled  and  sworn  the  truth  to  speak  upon  the  issue 
joined  between  the  parties,  upon  their  oaths  do  say  *  that  the  said 
C.  D.  is  guilty  in  manner  and  form  as  the  said  A.  B.  hath  complained 
against  him ;  and  thoy  assess  the  damages  of  the  said  A.  B.  by 
reason  of  the  premises,  to dollars :     Therefore,  &;c. 


The  like,  for  Defendant. 

[Proceed  as  in  the  last  precedent  to  the  * 
that  the  said  C.  D.  is  not  guilty  in  manner  and  form  as  the  said 
A.  B.  hath  complained  against  him :     Therefore,  &c. 


IM  TROVER. 


Judgments. 


For  the  Forms  of  Judgments  on  Demurrer,  Non-suit,  Abate- 
ment, Default,  &c.,  See,  same  titles,  in  Assumpsit. 


Judgment  for  Plaintiff  on 
plea  of  Not  Guilty. 

[^Enter  the  vey^dict  as  above — Therefore 
it  is  considered  that  the  said  A.  B.  recover  of  the  said  C.  D.  the 

said  sum  of dollars  his  damasres  aforesaid  in  form  aforesaid 

assessed,  and  also  his  costs  herein  expended,'^taxed  to dollars. 


Judgment  for  Defendant  on  ) 
plea  of  Not  Guilty.  ) 

[Enter  verdict  as  above — Therefore 
it  is  considered  that  the  said  C.  D.  go  hence  without  day  and 

recover  of  the  said  A.  B.  his  costs  herein  expended,  taxed  to 

dollars. 


TKEb 


Trespass. 


The  action  of  Trespass  is,  in  general,  commenced  by  sum,/.  „^, 
or,  capias  ad  respondendum. 


Summons. 

The  summons  is  issued,  as  a  matter  of  course,  upon  filing  a 
Praecipe  with  the  Clerk  of  the  proper  Court.     See,  ante.  7,  n.  (a). 


Precipe  for  Summons  in  Trespass. 

A.  B.  ) 

vs.    >  In  Trespass.   Damages dollars. 

C.  D.  ) 

Issue  a  summons  returnable  [forth- 
with, if  in  term  time,  or,  at  next  term,  if  in  vacation'].  Endorse, 
"  Suit  brot,  &c,"     See,  ante.  8,  note  (a). 

T.  Atttj.  for  pitff. 
To  the  Clerk Com.  Pleas,  or,  Sup.  Court. 


Writ  of  Summons. 

The  State  of  Ohio County,  ss. 

To  the  Sheriff  of  said  County :  Greeting. 

We  command  you  to  summon  C.   D.  to  appear  before  our 
Supreme   Court,  or,   Court  of  Comjnon  Pleas,  of  the   County 

V 


154  TRESPASS. 

aforesaid,  at  the  Court  House  in  said  County,  forthwith,  [if  in 
term  time]  or/  on  the  first  day  of  their  next  term  [if  in  vacation] 

to  answer  unto  A.  B.  in  a  plea  of  trespass      Damages dollars. 

And  have  you  then  there  thi>  writ  (a). 

Witness,  T.  T.,  Chief  Judge  of  our  Supreme  Court,  or 
President  Judge  of  our  Court  of  Common  Pleas,  aforesaid,  this 
day  of A.  D. 

Attest. 

•     T.  C.  Clerk. 


(o)  For  the  proper  endorsements  to  be  made  upon  this  writ,  See,  ante  8. 
For  thn  Forms  of  an  Alias,  Pluries  ayrtt^Testofuni  Summons;  and  of  a  Capias 
ad  respondendum,  and  proceedings  uiereon,  See,  same  titles,  in  Assumpsit, 
Ante,/rom  12  to  18,  which  with  slighLvariationa  are  applicable  to  Trespass. 


TRESPASS.  165 


Declarations. 

For  general  principles  in  relation  to  Declarations,  See  Declara- 
tions in  Assumpsit,  ante.  20, 

No.  1 .     Assault  and  Battery. 

(    Supreme  Court,  or,  Court  of  Common 

County,  ss.    <         Pleas terin  [the  term  to  which 

(         the  icrit  was  returned. 

A.  B.  complains  of  C.  D.  in  a  plea  af  Trespass  for  that  *  the 

said  C.  D,  on at with  force  and  arms,  in  and  upon  the 

said  A.  B.  made  an  assault,  and  him  then  and  there  beat,  bruised, 
wounded  and  evil  entreated,  and  other  enormities  to  the  said  A.  B. 
the  said  C.  D.  then  and  there  did  ;  against  the  peace,  and  to  the 
damage  of  the  said  A.  B. dollars:  and  thereupon  he  sues,  &c. 

By  T.  his  Atty. 


No.  2.     The  like,  with  false  imprisonment  ) 
and  holding  in  servitude.  \ 

[Pi-oceed,  as  in  No.  1,  to  the  * the 

said  C.  D.  on at with  force  and  arms  assaulted  the  said 

A.  B.  and  him  then  and  there  took  and  imprisoned,  and  restrained 
him  of  his  liberty,  and  held  him  in  servitude,  from,  &c.  until,  &c. 
against  the  law  of  the  land,  and  against  the  will  of  the  said  A.  B. 
and  other  injuries  the  said  C  D.  there  did  within  that  time;  against 
the  peace  and  to  the  damage,  &lc.  [Conclude  as  in  No.  1. 


No.  3.     For  debauching  a  daughter  or  sercant. 

[Proceed  as  in  No.  1  to  the  *  —  the 
snid  C.  D.  on nt with  force  and  arms,  assaulted,  de- 


156  TRESPASS. 

bauched,  and  carnally  knew  one  E.  F.  then  and  from  thence 
hitherto  the  daughter  and  servant  of  the  said  A.  B.,  whereby  the- 
said  E.  F.  became  pregnant  and  sick  with  child,  and  so  continued 
for  a  long  space  of  time,  to  wit,  nine  months  then  next  following, 

at  the  expiration  whereof  the  said  E.  F.  on  at was 

delivered  of  the  child  with  which  she  was  so  pregnant  as  aforesaid; 
by  means  of  which  said  several  premises,  the  said  E.  F.  during 
all  the  said  nine  months,  was  unable  to  perform  the  necessary 
affairs  of  the  said  A.  B.  so  being  her  father  and  master  as  afore- 
said; and  thereby  the  said  A.  B.  was  during  all  the  said  nine  months 
deprived  of  the  service  of  his  said  daughter  and  servant,  to  wit, 

at aforesaid ;  and  was  obliged  to  expend  and  did  expend, 

divers  large  sums  of  money,  in  the  whole  amounting  to 

dollars  in  the  nursing  of  his  said  daughter  and  servant,  and  in  the 
delivery  of  the  said  child,  &c.  {^Conclude  as  in  No.  1. 


No.  4.     Trespass  quare  clausum  fregit. 

[Proceed  as  in  No.  1.  to  the  *  —  the  said 

C.  D.  on and  on  divers  other  days  and  times  between  that 

day  and  the  day  of  the  commencement  of  this  suit,  (a)  with  force 
and  arms,  broke  and  entered  the  close  of  the  said  A.  B.  situate, 
&c.  (b)  and  then  and  there  cut  down  and  destroyed  the  trees,  to 
wit,  one  hundred  oak  trees,  one  hundred  ash  trees,  &c.  of  the 
plaintiff,  of  great  value,  to  wit,  of  the  value  of dollars,  and 


(a)  The  trespass  may  be  laid  with  a  conlinuando,  from  such  a  day  to 
such  a  day,  when  the  trespass  from  its  nature,  is  capable  of  a  continuance. 
The  English  authorities  upon  this  subject  are  somewhat  at  variance. — 
Breaking  and  entering  the  pl;iintitF's  house  cr  close  may  be  ^aid  with  a 
continuando.  1  Sid.  319.  Ld.  Raym.  24l'.  So,  spoiling  his  grass,  cutting 
his  corn,  cutting  down  his  wood,  &lc.  Ibid.  So,  trampling  down  grass, 
&c.  with  the  feet  in  walking.  Mod.  179.  It  is  said  that  the  act  of  man, 
cannot  properly  be  laid  with  a  continuando,  because  he  is  necessarily  inter- 
rupted by  sleep,  meals,  &c.  Salk.  639.  Vin.  M?.  1,  2,  (k).  5  Bac.  Ab^. 
192. 

[b)  If  the  description  is  general,  and  the  defendant  pleads  liberum  tene- 
mentum,  the  plaintiif  must  make  a  new  assignment,  describing'  the  p. ace, 
where  the  trespass  was  committed,  with  proper  certainty.  To  avoid  this 
necessity,  it  is  better  to  give  a  precise  description  in  the  declaration.  Great 
care  however  is  necessary  here  as  well  as  in  a  new  assignment;  as  a  mate- 
rial variance  is  fatal.  1  Tatint.  495.  1  Sauud.  299.  Starkie's  Ev.  Tit. 
Variance,  See,  Pleas  in  Trespass,  post.  No.  4,  note  [a). 


TRESPASS.  157 

the  timber  and  wood  thereof,  amounting  to  a  great  quantity,  to 

wit, loads  of  timber,  and cords  of  wood  of  the  said  A.  B. 

of  great  value,  to  wit,  of  the  value  of  dollars,  took  and 

carried  away,  and  converted  and  disposed  thereof  to  Ids  own  use; 
and  other  injuries,  &c.  [Conclude  as  in  No.  1.]  Add  count  for 
cutting  and  carrying  away  trees,  See,  post.  No.  5. 


No.  5.     For  cutting  and  carrying  away  trees. 

[Proceed  as  in  No.  1  to  the  *  —  the  said  C. 

D.  on and  on  divers  other  days  and  times,  between  that  day 

and  the  day  of  the  commencement  of  this  suit,  with  force  and  ai'ms, 

cut  down  and  destroyed  the  trees,  to  wit,  oaks, ash, 

elms,  &c.  of  the  said  A.  B.  of  great  value,  to  wit,  of  the 

value  of dollars,  then  growing  and  being  in  and  upon  certain 

lands  there  situate,  and  took  and  carried  away  the  same,  and  con- 
verted and  disposed  thereof  to  his  own  use ;  and  other  injuries, 
&;c.  (a).  [Conclude  as  in  No.  1. 


No.  G.     For  taking  and  carrying  away  goods. 

[Proceed  as  in  No.  1  to  the  *  —  the  said 

C.  D.  on  ' at with  force  and  arms,  took  and  carried 

away  the  goods  and  chattels,  to  wit,  [describe  the  property  as  in 
Trover,  ante,  149,]   of  tiie  plaintirtj  then  and  there  found    and 

being,  of  great  value,  to  wit,  of  the  value  of dollars,  and 

converted  the  same  to  the  use  of  the  said  C.  D.  against  the  peace, 
&c.  (l)).  [Conclude  as  in  No.  1. 


(a)  It  is  usual  where  tlie  facts  will  support  the  allegation,  to  declare  as 
well  lor  breaking  the  close,  as  for  cuttiiii,'-  down  the  trees  ;  but  wliere  the 
land  has  been  demised,  and  the  trees  were  excepted  in  the  lease,  and  in 
6ome  other  cases,  the  above  count  is  most  proper.  1  Saund.  32:2,  h.5.  7  T. 
R.  13.  2  Chit.  JP/.420,  n.  (c). 

(6)  It  is  necessary  to  allege  that  tlic  goods  are  the  plaintift"'8.  An  omis- 
sion of  such  allegation  is  not  cured  by  verdict.  .SVra.  1U23.  2  Lev.  15G. 
Salk.  54!».  As  to  the  description  of  the  goods,  Hee,  2  Chit.  PI.  410.  4 
Burr.  24.ir).  3  fnix.  292.  The  value  of  tlic  goods  should  be  mentioned.  2 
Lev.  2o0.  Ci-o.  Car.  307.  The  omission  to  state  tlic  value,  is  aided  by 
verdict.   Com.  Dig.  PI.  3. ¥.5,  2  Jvhns.   /tVp.  421. 


158  TRESPASS. 

No.  7.     For  mesne  profits  after  a 
recoverj/  in  ejectment  (a). 

\_Co7nmence  c/ls  in  No.  1 — A.  B.^com- 

plains  of  C.  D.  in  a  plea  of  trespass,  for  that  the  said  C.  D.  on". 

(ft)  with  force  and  arms,  broke  and  entered messuages,  &c. 

[Describe  the  premises  as  in  the  declaration  in  ejectment  in  ivhich 
judgment  was  ohtained'\  situate,  &c.  and  ejected  the  said  A.  B. 
from  his  possession  thereof,  and  continued  so  to  keep  him  from 
his  possession  thereof,  for  a  long  space  of  time,  to  wit,  from  the 

day  and  year  aforesaid  until \the  day  on  which  possession  was 

o'btained~\  and  during  that  time  received  to  his  own  use  all  the 
issues  and  profits  of  the  said  tenements,  being  of  great  value,  to 

wit,  of  the  value  of dollars  :  Whereby  the  said  A.  B.  during 

all  the  time  aforesaid,  not  only  lost  the  issues  and  profits  of  the 
said  tenements,  but  w' as  deprived  of  the  use  and  means  of  cultiva- 
ting the  same,  and  was  obliged  to,  and  did  expend  divers  large 
sums  of  money,  amounting  in  all  to  a  large  sum  of  money,  to  wit, 
the  sum  of dollars,  (c)  in  and  about  the  recovering  of  the 


(a)  This  action  may  be  in  the  name  of  the  nominal  plaintiff,  or  of  the 
lessor  of  the  plaintiff;  if  there  were  several  dcniises,  and  the  party  inter- 
ested liad  no  right  of  possession  anterior  to  the  day  of  the  demise  in  the 
ejectment,  it  is  frequently  most  advisable  to  proceed  in  the  name  of  the 
former  ;  but  otherwise  in  that  of  tlie  latter,  in  order  to  recover  anterior 
mesne  profits,  2  Chit.  PL  388.  Under  the  statute  for  the  relief  of  occupy- 
ing claimants,  vol.  29,^.  261,  \",  this  action  is  barred,  by  the  report  of  the 
jury,  as  to  all  mesne  profits,  which  may  have  accrued  after  the  service  of 
the  declaration  in  ejectment,  but  as  to  mesne  profits  anterior  to  Xhc  service 
of  the  declaration,  the  statute  is  silent,  and  the  plaintiff,  it  would  seem, 
may  resort  to  this  action.     See,  Occupying  claimants.  Post. 

(h)  This  is  usually  the  day  of  the  ouster  laid  in  tlie  declaration  in  eject- 
ment, but  when  the  plaintiff's  right  of  possession  and  the  defendant's  un- 
lawful entry  were  anterior  to  that  time,  it  is  advisable  to  state^'the  tin  e 
according  to  the  fact.  2  Chitt.  PL  888. 

(c)  In  this  action  the  plaintiff  may  recover  in  damages  the  value  of  the 
occupation  of  tne  premises,  together  with  the  costs  of  the  action  of  eject- 
ment, and  if  any  particular  damage,  waste,  or  injury  to  the  premises  were 
committed  by  the  defendant,  it  should  be  stated  specially.  2  Chitt.  PL  288. 
Where  the  profits  claimed,  are  for  a  greater  length  of  time  than  four  years, 
the  defendant  may  plead  the  statute  of  limitations.  It  should  however  be 
remarked,  that  the  jury,  in  assessing  damages  in  this  action,  are  by  no  means 
obliged  to  confine  themselves  to  the  annual  rents  of  the  land,  but  may,  in 
every  case,  assess  such  damages,  as  they  think  will  do  justice  between  the 
parties.     In  .3  JFits.  118,  Mr.  Justice  Gould  remarks,  that  he  had  known 


TRjbis>rAS».  159 

possession  oi  me  said  tenements,  to  wit,  at  tne  couaiy  aforesaid ; 
and  other  wrongs,  &c.  \^Conclude  as  in  No.  1. 


four  times  the  value  of  the  mesne  profits  given  by  a  jury  in  this  action. 
Whether  it  be  proper  to  make  a  suggestion  of  this  kind  to  the  jury,  in  casea 
where  the  defendant  sets  up  the  statute  of  limitations  against  the  plaintiff's 
claim,  to  prevent  him  from  recovering  more  than  what  is  not  within  the 
statute,  may  be  worthy  of  consideration  ;  in  order  that  complete  justice, 
either  'per  directum  or  per  obliquum,  may  be  done  between  the  parties.  Ol. 
Free.  498.  • 


1^0  TRESPAvSS. 


Pleas  in  Abatement. 

For  pleas  in  Abatement,  See,  Assumpsit,  Ante.  38, 

Pleas  in  Bar. 

For  general  principles  in  regard  to  pleas  in  Bar,  See,  Ante.  41. 

No.  1.     Not  Guilty. 

In  Trespass. 


And  the  said  C.  D.  comes  and  defends,  &c. 
and  says  that  he  is  not  guilty  in  manner  and  form  as  the  said  A.  B. 
hath  complained  against  him,  and  of  this  he  puts  himself  upon  the 
country,  and  the  said  A.  B.  doth  the  like,  &c.  {a). 

By  S.  his  My. 


(a)  In  trespass  either  to  real  or  personal  property,  the  general  issue  is, 
not  guilty;  and  if  the  action  be  concerning  the  former,  it  puts  in  issue  not 
only  the  fact  of  trespass,  but  also  the  title,  evidence  of  which,  and  of  the 
right  of  possession,  is  admissible;  as  a  demise  from  the  owner  of  the  land. 
7  T.  R.  354.  Under  this  plea,  soil  and  Jreehold  may  be  given  in  evidence. 
And.  108.  2  Kel.  154.  8  T.  R.  403.  Com.  Dig.  PL  (3  M.  11.)  Story 
PL  624.  So  the  defendant  may  give  in  evidence,  under  this  plea,  that  he 
\^  tenant  in  common  with  the  plaintiff.  2  Esp.  JV.  P.  103.  Gilb.  Ev.  487. 
Otherwise,  if  the  plaintiff  be  tenant  in  common  with  a  third  person;  for 
then  it  must  be  pleaded  in  abatement.  Salk.  4.  A  licence  to  enter  must 
be  pleaded  specially.  2  T.  R.  IQQ.  So,  a  right  of  way.  Gilb.  Ev.  217. 
So,  an  incorporeal  right.  Com.  Dig.  PL  E.  15.  2  Wils.  173.  and  where 
the  act,  would  at  common  law,  prima  facie,  appear  to  be  a  trespass,  any 
matter  of  justification  or  excuse,  must  in  general  be  specially  pleaded. 
Ibid.     12  Mod.  120.     XV.  Petersd.  Abg.  136. 

The  plea  of  not  guilty  is  proper  in  trespass  to  persons,  if  the  defendant 
committed  no  assault,  battery,  or  imprisonment,  &c.  but  any  matter  of  jus- 
tification or  excuse,  must  in  general  be  pleaded  specially.     2  Camp.  378. 


TRESPASS.  161 

No.  2.     Son  Assault. 

In  Trespass. 

And  the  said  C.  D.  comes  and  defends,  (fee. 
and  says,  that  as  to  the  force  and  arms,  and  whatever  is  against  the 
peace,  he  is  not  guilty  thereof,  in  manner  and  form  as  the  said  A. 

B.  hath  above  complained  against  him:  and  of  this  he  puts  himself 
upon  the  country,  and  the  said  A.  B.  doth  the  like,  &c. 

And  as  to  the  residue  of  the  trespass  aforesaid,  above  supposed 
to  be  committed,  the  said  C.  D.  says,  that  the  said  A.  B.  his  action 
aforesaid  against  him  the  said  C.  D.  ought  not  to  have  because  he 
says,  that  at  the  the  time  and  place  when  and  where  the  said  tres- 
pass is  above  supposed  to  have  been  committed,  to  wit,  on  —  at  — 
he  the  said  A.  B.  with  force  and  arms  upon  him  the  said  C.  D 
did  make  an  assault,and  him  the  said  C.  D.  did  then  and  there 
beat,  bruise,  and  would  have  further  beaten,  bruised  and  wounded 
him  ;  wherefore  he  the  said  C.  D.  did  then  and  there  defend  him- 
self against  the  said  A.  B.  which  is  the  residue  of  the  trespass  where- 
of the  said  A.  B.  complains  as  aforesaid  ;  and  so  the  said  C.  D.  says, 
that  the  damage  or  injury,  if  any  then  and  there  happened  to  the 
said  A.  B.  was  from  the  assault  of  the  said  A.  B.  upon  liim  the  said 

C.  D.  and  in  his  defence  ;  and  this  he  is  ready  to  verify ;  wherefore 
he  prays  judgment  if  the  said  A.  B.  ought  his  action  aforesaid  to 
have  against  him,  &c.  (a). 


.379.  500.  Co.  Lilt.  2S2.  h.  283.  a.  Doxig.  611.  1  Saund.  29S.  n.  1.  Com. 
Dig.  PI.  3.  15.  10.  17.  2  Bos.  and  Pull.  224.  But  if  tlie  circumstances 
could  not  hu-ve  been  pleaded,  in  justilicatiou;  as  a  provocation,  Sic.  it  seems 
they  may  be  given  iu  evidence  in  mitigation.  Ibid.  Vin.  .ibg.  ilv  [L.  b.) 
12J/oJ.  232. 

(a)  Tiiis  pl^a  ia  commonly  annexed  to  the  General  Issue,  Not  Guilty. 
The  defendant  may  plead  togetiier,,  ]Sot  (Juiliy  and  Tender  of  amends. 
2  Bl.  109.     3  Barnes.  359.  300. 

So,     Not  (iJuilty  and  a  Licence.     Barnes.  2'o\.  oQ>\. 

So,     Not  Guilty  and  the  Statute  of  Limit.itions.     2  Str.  889. 

So,     Not  guilty  and  son  (tssanll  demesne.     Barnes.  350. 

So,     Two  justifications  may  be  pleaded  together.     1  Sir.  425. 

So,     Not  (iuilty  and  satisfaction.      Barnts.'.i'iU. 

So,  Not  Guilty  and  libernnitenenientuin,  if  the  locus  in  r/uo  be  not  ascer- 
tained in  the  declaration.  Barnes. '■'I'Ah  It  was  formerly  licld,  that  not 
guilty  and  a  justification  could  not  be  jdeaded  together,  because  not  gvilti/, 
V 


162  TRESPASvS. 

Repucation.      Of  his  own  wrong. 

And  the  said  A.  B.  says,  that 
iie  ought  not  to  be  precluded  from  having  his  aforesaid  action 
against  the  said  C.  D.  by  reason  of  any  matter  by  him  plead- 
ed in  bar,  because  he  says,  that  the  said  C.  D.  at  the  time  when, 
&LC.  committed  the  trespass  aforesaid,  in  the  declaration  alleged, 
of  his  the  said  C.  D's.  own  wrong,  and  without  any  such  cause  as 
is  by  the  said  C.  D.  in  his  said  plea  alleged ;  and  this  the  said  A.  B. 
prays  may  be  enquired  of  by  the  country,  &c. 


No.  3.     Property  of  defendants,  <^c. 

C.  D.  et  al.    ) 

ads.  >      In  Trespass. 

A.  B.  ) 

And  the  said  C.  D.  E.  F.  and  G.  H.  come 
and  defend,  &c.  and  as  to  the  force  and  arms,  and  the  whole  tres- 
pass aforesaid,  except  the  taking  and  driving  away  one  heifer  of 
the  said  cattle,  say  that  they  are  in  no  wise  guilty  ;  and  of  this  they 
put  themselves  upon  the  country,  and  the  said  A.  B.  doth  the  like, 
&c. 

And  as  to  the  taking  and  driving  away  the  same  heifer,  the  said 
C.  D.  E.  F.  and  G.  H.  say,  that  the  said  A.  B.  his  action  aforesaid 
against  them  ought  not  to  have,  because  they  say,  that  long  before 
the  said  trespass  is  supposed  to  have  been  done,  the  property  of  the 
same  heifer  was  in  the  said  C.  D.  and  E.  F.,  and  they  being  possesed 
of  the  same  heifer  as  of  their  own  property,  before  the  time  when, 
&c.  delivered  the  same  heifer  into  the  possession  of  one  A.  B.  at  — 
to  be  safely  kept  and  pastured;  and  afterwards,  and  before  the 
said  time  when,  &c.  the  said  A.  B.  took  and  drove  away  the  same 
heifer  from  the  possession  of  the  said  A.  B.  and  afterwards  at  the 
said  time  when,  &c.  the  said  C.  D.  and  E.  F.  in  their  own  right,  and 


denies  the  trespass,  and  a  justification,  admits  it.  2  Sir.  876.  But  now 
it  is  a  common  practice  to  plead  them  together.  2  Car.  and  P.  ^3.  ,4rch. 
PI.  252.     Story  PI.  by  Ol.  .598. 


TRESPASS.  163 

the  said  E.  F.  as  servant  of  the  said  C.  D.  and  E.  F.  and  by  theh- 
Older,  toqk  and  drove  away  the  said  heifer,  as  they  lavi'fully  might 
do  ;  and  this  they  are  ready  to  verify  ;  wherefore,  &c. 


Replication. 

And  the  said  A.  B.  says  that,  by  reason 
of  the  matters  in  bar  pleaded  by  the  said  C.  D.  E.  F.  and  G.  H.  he 
the  said  A.  B.  ought  not  to  be  barred  from  his  action  aforesaid, 
because  he  says,  that  the  said  C.  D.  E.  F.  and  G,  H.  by  force  and 
arms  at  &c.  aforesaid  took  and  drove  away  the  said  heifer,  as  the 
said  A.  B.  in  his  declaration  has  alleged,  without  this,  that  the 
property  of  the  said  heifer  at  the  time  of  the  said  trespass,  was  in 
tlie  said  C.  D.  and  E.  F.  as  the  said  defendants  have  alleged ;  and 
this,  (fee. 


No.  4.     Liberum  tenemenhim. 

C.  D.  &  G.  H.    ^ 

ads.  >    In  Trespass. 


A.  B. 


[1.  Not  Gidlty.  Ante,  No.  1.] 


And  for  a  further  plea  in  this  behalf  the  said  C.  D.  and  G.  II.  say 
that  the  said  A.  B.  ought  not  to  have  his  aforesaid  action 
against  them,  because  they  say,  that  the  said  close  in  the  said  dec- 
laration mentioned,  now  is  and  at  the  said  several  times  when  the 
said  several  trespasses  are  supposed  to  have  been  committed,  was 
the  close,  soil  and  freehold  of  the  said  C.  D.  to  wit,  at  the  County 
aforesaid  ;  wherefore  the  said  C.  I),  in  his  own  right,  and  the  said 
G.  H.  as  his  servant  and  by  his  command,  committed  the  said  sev- 
eral supposed  trespasses  in  the  said  declaration  mentioned,  in  the 
said  close  of  the  said  C.  D.  as  they  lawfully  might  do:  and  this 
they  are  ready  to  verify  :  wherefore  they  pray  judgment  if  the  said 
A.  B.  ought  to  have  his  aforesaid  action  against  them.  &c.(rt) 


(a)  See,  Ante.  \T)(\.     nole  {!>).     This  plea  is  contrary  to  the  {reiicral  rules 
of  pleading,  as   notwithstandiiifr  flio    trutjj   of  it,   th(3  plaintiff  niny  liavc  a 


I'U  TRESPASS. 


New  assignment  to  plea 
or  liberum  tExNEMentum. 


[Precludi  non,  &c. because  he  says 

that  the  said  piece  or  parcel  of  land,  in  wliich,  &c.  in  the  said  dec- 
laration mentioned,  at  the  said  several  times  when,  &c.  was  and  is 
a  certain  close,  situate,  &c.  [state  the  boundaries]  which  said  close 
now  is  and  at  the  said  several  times  when,  &c.  was  another  and 
different  close,  from  the  said  close  in  the  said  last  plea  of  the  said 
C.  D.  mentioned,  and  therein  alleged  to  be  the  close,  soil  and  free- 


^ood  causeof  action  ;  and  every  plea  in  bar,  admitting  the  facts  stated  in  it 
to  be  true,  ought  to  be  a  full  bar  to  the  action.  This  plainly  is  not  so;  for 
the  plaintiff  might  have  a  lease  from  the  defendant,  or  claim  under  any 
other  person,  who  conveyed  the  reversion  to  the  defendant,  or  even  if  he 
had  no  right  at  all,  if  he  had  been  in  quiet  possession  a  length  of  time,  as 
in  that  case  the  person  claiming  a  right  must  bring  an  ejectment,  and  can- 
not enter  by  force;  the  plaintiff  might  sustain  his  cause.  The  reason  why 
this  plea  was  introduced,  was  because  formerly  most  declarations  in  Tres- 
pass were  ^-enerr/Z,  only  for  breaking  and  entering  the  plaintiff's  close  in 
such  a  place,  without  describing  or  giving  any  name  to  the  close.  It  was 
thought  a  great  hardship  in  such  case  to  oblige  the  defendant  to  answer 
such  a  general  charge  ;  for  if  the  plaintiff  had  a  large  estate  in  the  town- 
ship, the  defendant  could  not  tell  in  which  of  the  closes  he  would  assign  the 
trespass;  and  therefore  the  Courts  gave  the  defendant  leave  to  plead  liberum 
tenementnm,  which  obliged  the  plaintilT  to  make  a  new  assignment,  and 
ascertain  the  place  in  his  replication.  If  the  plaintiff  did  not,  the  hardship 
would  be  turned  on  himself;  for  if  the  defendant  could  prove,  that  he  had 
any  freehold  estate  in  any  part  of  the  township,  the  action  was  gone.  6  Jlod. 
117.  118.  119.  7  T.  R.  33.5.  This  plea  was  sometimes  called  the  g'eneral 
issue,  sometimes,  cummon  bar,  bar  at  large,  ^nd  sometimes,  blank  bar.  Cro. 
Car.  384.  Cro.  Jac.  .594.  But  this  plea  is  confined  to  Trespass  quare 
clausum /regit.  Carth.  17G.  Q  .Mod.  117.  The  Plaintiff  may  reply  three 
ways.  I.  If  his  title  be  inconsistent  with  the  defendant's  plea,  he  may 
traverse  the  plea,  and  as  the  action  of  Trespass  is  a  possessory  action,  it  is 
perfectly  indifferent  whether  he  sets  out  his  own  title  or  not.  3  Salk.  354. 
II.  If  the  plaintiff  derives  t'tle  under  the  defendant,  then  the  plaintiff  must 
admit  the  defendants  title,  and  insist  on  his  lease  or  other  title,  and  the 
traverse  must  come  on  the  part  of  the  defendant.  III.  If  the  plaintiff  has  a 
middle  case,  and  neither  derives  title  from  the  defendant,  nor  one  inconsis- 
tent with  his,  be  may  plead  as  in  Cro.  Car.  384;  where  the  defendant  plead- 
ed soil  and  freehold,  and  the  plaintiff  replied,  that  before  the  defendant  had 
title  in  the  premises,  A.  A.  was  seised  of  them  as  his  freehold,  and  leased 
them  to  B.  B  for  a  term  of  years  now  subsisting,  imder  whom  the  plaintiff 
now  claimed,  without  either  confessing  or  denying  the  defendants  plea;  and 
it  was  holden  on  demurrer  to  be  a  good  replication.  See,  TVilles,  218. 
225.  In  this  case  AA'illes  C.  J.  inclined  to  think,  that  if  the  plaintiff 
mentioned  the  -place,  by  name,  in  his  declaration,  the  defendant  could 
not  plead  the  common  Bar.  Contra.  2  Bl.  Rep.  10S9.  See  Saund. 
299.  n.  6.     Story  Pi.  625. 


TRESPASS.  105 

hold  of  the  saidC.  D.  and  this  he  is  ready  to  verify ;  wherefore  he 
prays  judgment  and  his  damages  on  occasion  of  the  committirig  of 
the  said  trespass  newly  assigned,  &c.  {a). 

(a)  The  defendant  may  plead  to  the  new  assignment  in  the  eame  manner 
as  if  the  close  had  been  described  in  the  declaration.  The  form  of  the  com- 
mencement is  thus:  "And  the  said  C.  D.  as  to  the  said  several  supposed 
tresp'iBses  newly  assigned,  says,  that  he  is  not  guilty,  &ic."  S  Chik  PU  699v 
3  Went.  162.  163. 


166  TRESPASS. 


I  Verdicts. 

For  the  general  prfndples  lo  relation  to  Trials  by  Jury  and 
Verdicts,  See,  Ante,  61. 


Verdict  for  Plalniif 
on  plea  of  not  Guilty. 


In  Trespass. 


This  day  came  the  parties  by  their  attor- 
nies,  and  thereupon  came  a  jury,  to  wit,  E.  F.  &cc.  who  being  em- 
pannelled  and  sworn,  the  truth  to  speak  upon  the  issue  joined  be- 
tween the  parties,  upon  their  oaths  do  say,*  that  the  said  C.  D. 
is  guilty  in  manner  and  form  as  the  said  A.  B.  hath  complained 
against  him,  and  they  assess  the  damages  of  the  said  A.  B.  by  rea- 
son of  the  premises  to dollars  j  Therefore,  &c. 


No.  ^     Tlie  like,for  DefendanL 

proceed  as  in  the  last  precedent  to  the  * 

that  the  said  C  D.  is  not  guilty,  in  manner  and  form  as  the  said  A. 
B.  hath  complained  against  him  ;  Therefore,  &c. 


For  the  Forms  of  Verdicts  on  Special  issues,  See,  Verdicts  in 
Assumpsit  and  Debt,  which  with  slight  variations  are  applicable  to 
Trespass^. 


TRESPASS.  167 


JUDOMENTS. 


For  the  Forms  of  Judgments  on  Demurrer,  Non-suil»  Abate- 
ment, Default,  &c.  See,  same  Titles,  io  Assumpsit. 


Judgment  for  Plaintiff,  on 
Verdict  of  Guilty. 

,  [Enter  Verdict,  as  above Thei*c- 

fore  it  is  considered  that  the  said  A.  B.  recover  of  the  said  C.  D. 
the  said  sum  of dollars,  his  damages  aforesaid  in  form  afore- 
said assessed,  and  also  his  costs  herein  expended,  taxed  to 

dollars^ 


Judgment  for  Defendant  on 
Verdict  of  Not  Guilty. 

[Enter  the  Verdict,  as  above There- 
fore it  is  considered  that  the  said  C.  D.  go  hence  without  day  and 

recover  of  the  said  A.  B.  his  costs  herein  expended,  taxed  to  ■ 

dollars. 


168  EJECTMENT. 


Ejectment. 


NATtJBD  OP  ftEWEDT,  AlfD  WHEN  IT  LIES. 

Ejectment  is  the  common  remedy,  resorted  to  in  tlie  State  of 
Ohio,  to  recover  the  possession  of  real  property,  either  in  fee,  for 
life  or  for  years.  This  action  has  been  somewhat  modified  by 
Statutory  regulation,  and  the  decisions  of  our  Courts,  as  will  be 
seen  hereafter,  but  the  same  general  principles  prevail  here  as  in 
England  and  in  several  States  of  the  Union. 

The  general  rule  is,  that  Ejectment  will  lie  for  any  thing  attached 
to  the  soil,  of  which  the  Sheriff  can  deliver  possession.  Mams, 
Eject.  16.  16  Johns.  Rep.  184.  It  cannot  be  maintained  where 
the  thing  to  be  recovered  cannot  be  delivered  in  execution,  and 
whereon  an  entry  cannot  be  made,  B.  N.  P.  99.  So  it  will  not 
lie  for  a  water  course,  but  it  will  for  the  ground  over  which  the 
water  passes.  Yeh.  143.  The  owner  of  the  soil  may  maintain 
this  action  for  land  which  is  part  of  the  King's  highway.  Burr. 
133.  145.  Wherever  a  right  of  entry  exists,  and  the  interest  is 
tangible,  so  that  possession  of  it  can  be  delivered,  ejectment  will 
lie.  9  Johns.  Rep.  298.  S.  P.  1  Tyler,  355.  2  Yeates,  331. 
When  a  highway  is  laid  out  over  the  land  of  a  private  person,  the 
public  acquire  no  more  than  a  right  of  way,  or  easement,  and  the 
title  of  the  original  proprietor  continues  :  He  may  use  the  land  in 
any  manner  not  inconsistent  with  the  public  right,  and  may  main- 
tain trespass  or  ejectment  in  relation  to  it.  1  Burr.  143.  15  Johns. 
Rep.  447.  S.  P.  2  Johns.  Rep.  357.  15  Johns.  Rep.  491. 
1  Cowen,  238.  1  Conn.  Rep.  103.  6  Pick.  59.  16  Mass.  35. 
14  lb.  256.  6  lb.  456.  2  lb.  127.  1  Yeates,  167.  3  Rand.  Rep. 
563.  Ejectment  will  not  lie  against  a  person  for  setting  up  a  stall 
in  a  street.  The  remedy  is  trespass  by  the  owner  of  the  soil. 
1  Carr.  and  P.  123.  Ejectment  will  not  lie  by  the  owner  of  the 
soil,  for  land,  which  is  subject  to  a  passage  over  it,  as  a  public  high- 
way, or  common.     6  Peters.  431. 


EJECTMENT.  169 


PLEADINGS. 


Declaration.  The  declaration,  from  the  peculiar  mode  of 
proceeding  in  this  action,  may  be  considered  as  a  kind  of  writ  or 
process.     Saund.    PL  and  Ev.  545. 


Title  of  term.  The  declaration  is  commonly  entitled  of  the 
term  next  preceding  the  vacation  in  which  it  is  served :  but  any 
omission  or  mistake  in  this  respect  is  immaterial,  as  the  consent 
rule  precludes  the  dcfendcnt  fi'om  raising  any  objection  on  that 
account.  Saund.  PL  and  Ev.  51G.  The  title  to  the  Declaration  in 
ejectment  is  mere  form,  and  good,  though  of  a  term  after  its  ser- 
vice. 6  Cowen,  597.  So,  though  it  be  without  any  title  at  all. 
Ibid. 


Venue.  The  venue  is  local  and  confined  to  the  County  in  which 
the  lands  are  situated.  Jldams  Eject.  18G.  G  Mod.  222.  Cowp. 
161.  176. 


Demise,  by  whom.  '"In  all  actions  of  ejectment,  the  plaintiff 
shall  have  the  same  benefit  and  advantage  from  a  joint  demise,  that 
he  could  from  several  demises  ;  and  separate  demises  shall  only  be 
laid  in  tlie  names  of  tenants  in  common."  Oiiio  Slat.  I  uL  21).  p.  08. 
§  51.  2  Ohio  Rep.  287.  Ohio  Conds.  361.  The  demise  is  merely 
fictitious,  but  still  it  must  be  consistent  with  the  title  of  the  lessor; 
such  a  demise  must  be  supposed  to  be  made,  as  would  if  actually 
made,  have  transferred  the  right  of  possession  to  the  lessee.  Adams 
Eject.  186.  6  Co.  15,  h.  So,  when  the  demise  was  laid  as  joint 
when  it  was  made  by  tenants  in  common,  it  was  bad;  because  ten- 
ants in  common  cannot  make  a  joint  demise.  2  Wils.  232.  Joint- 
tenants  or  parceners,  may  declare  upon  a  joint  demise,  or  severaJ 
demises  may  be  laid  from  each.  \  Ld.  Raym.  \2(S.  1  Wih.l.  12 
W 


170  EJECTMENT. 


TLEADINGS. 

East.  61  39.  6  lb.  182.  3  Camji.  190.  [See,  Stat,  above  cited.']  If  the 
right  of  entry  be  in  husband  and  wife,  in  right  of  the  wife,  the  de- 
mise may  be  laid,  either  by  husband  and  wife,  or  by  the  husband 
alone  :  Saiind.  PL  and  Ev.  546.  Cro.  Jac.  332.  lb.  617.  When  the 
demise  is  from  a  corporation,  it  is  unnecessary  to  allege,  as  former- 
ly, that  it  was  under  a  power  of  attorney,  and  by  deed.  JldamSj 
Eject.  190.  1  Esp.  Rep.  198.  1  Ld.  Rayin.  136.  Where  any 
doubts  exist  as  to  the  person  in  whom  the  legal  interest  is  vested, 
it  is  advisable  to  allege  several  distinct  demises  by  persons  sever- 
ally interested.      Chitt.  PI.  879.     Ma7ns,  Eject.  184. 

It  is  necessary  to  obtain  the  consent  of  the  person  under  whom 
a  demise  is  claimed,  to  be  permitted  to  make  use  of  his  name,  and 
if  no  such  consent  be  procured,  the  Court  on  affidavit,  will  set  aside 
the  verdict.  2  Chit.  Rep.  110.  S.  C.  18  Eng.  Com.  Law  Rep. 
288.  Saund.  PL  and  Ev.  547.  A  variance  in  the  name  of  the  lessor 
will  be  fatal.  C7'o.  Eliz  776.  Where  the  demise  is  by  an  infant,  it 
is  usual,  with  regard  to  the  costs,  to  make  his  father  or  guardian, 
the  plaintiff,  instead  of  a  fictitous  person.  Str.  694.  Cowp.  182. 
x\lthough  the  demise  is  a  fiction,  still  the  fiction  must  be  such  as 
might  by  possibihty  have  been  true  :  The  lessor  is  supposed  to 
have  been  capable  of  making  a  demise  not  only  at  the  time  when 
the  demise  is  alleged  to  have  been  made,  but  -when  the  suit  teas 
brought.  3  Wend.  Rep.  154.  -S.  P.  Chipman  69.  74.  The 
plaintiff  cannot  recover  under  a  demise  from  a  lessor  who  has  re- 
leased his  interest.  \2  Johns.  Rep.  488.  If  the  plaintiff  declare 
on  a  lease,  and  prove  a  title  in  fee  he  cannot  recover.  Chipman, 
74.  A  demise  from  a  man  who  was  dead  at  the  commencement 
of  the  suit,  may  be  objected  to  at  the  trial,  and  is  cause  of  non-suit. 
A  lessor  must  be  capable  of  making  a  demise,  not  only  at  the  time 
alleged  in  the  declaration,  but  also  when  the  suit  is  commenced. 
3  Wend.  Rep.  149.  A  demise  by  the  husband  and  wife,  when  the 
title  is  in  the  husband  alone,  is  bad.  2  Marsh.  Rep.  (Ky  )  457. 
Where  the  plaintiflf"  declares  on  separate  demises  by  two,  each  for 
a  moiety,  and  fails  to  prove  title  in  one  of  the  moieties,  he  may 
nevertheless  recover,  according  to  the  title  proved  in  the  other  les- 
sor. 4  Bibb.  21.  Ajn-ochein  ami  cannot  make  a  vahd  demise.  2 


EJECTMENT.  171 


PLEADINGS. 


Ohio  Rep.  287.  Ohio  Conds.  364.  After  issuejoineduponthe  title  no 
exception  can  be  taken  to  the  form  of  the  declaration.  1  Marsh 
Rep.  (Ky.)  6.  The  Court  are  bound  to  take  notice  of  the  real  par- 
ties litigating.  1  Yeates.  20. Tenants  in  common  may  recover  on  a 
joint  demise.  1  Hawk.  Rep.  4G9.  Or,  on  separate  demises.  2  Caines, 
Rep.  169.  Tenants  in  common  cannot  make  a  joint  demise. 
4  Bibb.  241.  One  of  several  coparceners  may  make  a  separate 
demise.  1  Johns.  Ca.  231.  Separate  demises  from  several  les- 
sors, may  be  laid  in  the  declaration,  and  the  plaintiff  may  give  in 
evidence  the  separate  titles  of  the  several  lessors  to  separate  parts 
of  the  premises,  and  recover  accordingly.  12  Johns.  Rep.  185. 
Z^".  P.  7  Harr.  and  Johns.  1.  Joint  tenants  must  join  in  ejectment, 
and  one  of  three  joint  tenants  cannot  recover  a  third  part  of  the 
premises  of  a  stranger.  4  Yeates,  577.  Although  a  plaintiff  may 
recover  less  than  he  claims,  yet  it  must  consist  of  the  same  nature 
with  that  claimed.  If  he  claim  an  undivided  moiety,  an  undivided 
th'rd,  &c.  may  be  recovered,  but  he  cannot  recover  an  undivided 
part  where  he  claims  an  entirety,  and  vice  versa.  1  Harr.  and 
Johns.  463.  The  plaintiff  cannot  declare  for  a  whole  tract  and 
give  evidence  of  a  title  to  an  undivided  moiety.  1  Taylor,  WO. 
The  plaintiff  shall  recover  according  to  his  right,  if  the  whole  be 
demanded  the  jury  may  find  for  a  moiety.  Chipman,  74.  Under 
a  declaration  for  a  moioty,  a  third  may  be  recovered.  2  Hayiv.  150. 
So,  if  the  jjlaintiff,  sue  for  a  ninth,  he  may  recover  an  eighteenth. 

2  Hayio.  222.  S.  P.  1  Cooke,  333.  9  Cranch,  151.  3  Bibb,2, 
The  plaintiff  cannot  recover  a  greater  quantity  or  interest  than 
he  declares  for,  but  he  may  recover  less.  1  Bibb.  110.  If  the  de- 
mise be  laid  from  two  heirs,  and  it  appear  that  there  were  three^ 
yet  the  plaintiff  shall  recover  an  undivided  interest  of  two  thirds. 

3  Bibb.  304.     4  Id.  358. 


Statement  OF  TiMK  OF  DEMISE.  The  demise  must  be  laid  as  ol 
a  day  subsequent  to  that  when  the  lessors  riglit  accurcd.  4  T.  R. 
680.  B.  N.  P.  105.  3  i?.  andC.  754.  5  D.  and  R.  711. 
15  East.  286.  1  Johns.    Ca,  283.     In  ejectment  by  mortgagee 


172  EJECTMENT. 


PLEADINGS. 


against  mortgagor  or  those  claiming  under  him,  the  demise  must 
be  laid  as  of  a  day  subsequent  to  a  default  in  payment.  6  Cow- 
en.  147,  A  demise  laid  before  the  title  of  the  lessor  of  the  plain- 
tiff accrued,  cannot  be  taken  advantage  of  after  issue  joined.  2 
Rand.  353.  3  Call.  3G2.  The  demise  should  be  laid  as  far  back 
as  the  title  of  the  lessor  will  admit,  with  a  view  to  the  mesne  pro- 
fits, as  the  plantiff  is  entitled  to  all  such  as  may  accrue  subsequently 
to  the  day  of  the  demise.  Bu?~r.  G65.  Whenever  doubts  exist 
as  to  the  exact  period  it  is  usual  to  insert  different  demises  and 
different  days.  Adams  Eject.  185.  2  Chitt.  PL  8S0.  The  dura- 
tion of  the  term  as  alleged  to  have  been  demised  is  not  material; 
so,  the  plantiff  may  declare  on  a  demise  for  five  years  though  the 
lease  be  only  for  three  years.  3  T.  R.  13.  B.  N.  P.  lOG.  1  Mod. 
10,  overrulinsf  2  Lev.  140. 


Description  of  the  premises.  No  determinate  rule  exists  as 
to  the  description  of  the  premises.  Adams,  Eject.  20.  It  was 
considered  an  established  princip  e  until  within  the  last  fifty  years, 
that  the  description  must  be  so  certain,  that  the  Sheriff  could  de- 
liver po'ssession  without  any  information  from  the  lessor;  this 
maxim  has  however  been  abolished,  and  it  is  now  the  practice  for 
the  Sheriff  to  deliver  possession,  according  to  the  direction  of  the 
claimant  who  therein  acts  at  his  peril.  Ada?ns,  Eject.  21.  Burr. 
623,  630,  2672.  An  ejectment  for  "four  corn  mills"  is  good.  1 
Mod.  90.  So,  for  "a  stable  and  cottage"  Cro.  Eliz.  848.  "for  a 
house"  "a  passage  room"  "a  room  and  chamber  in  the  second  story" 
Ld.  Raym.  1470.  3  Leon.  110.  In  ejectment  for  land  the  partic- 
ular species  should  be  mentioned,  whether  pasture,  ineadow  6fc. 
because  land  means  only  arable  land.  Cowp.  346,  349.  1 1  Co.  55. 
"Ten  acres  of  undcrw  ood"  "Fifty  acres  of  furze"  "Ten  acres  of 
peaze,"  have  been  held  sufficiently  certain.  2  Roll.  Rep.  482.  1  Mod. 
90.  1  Brown,  149.  "The  ancient  rule  required  the  description  to 
be  so  certain,  that  the  Sheriff  might  know  from  his  execution,  ex- 
actly of  what  to  deliver  possession.  The  relaxation  of  that  rule 
has  opened  the  way  for  numerous  and  vexatious  applications  to 


EJECTMENT.  173 


PLEADI.XGS. 


correct  the  errors  ol  the  Sheriff  in  delivering  possession;  and  the 
settled  rule  of  the  Supreme  Court,  \vhere  a  general  verdict  is  given 
for  the  plaintiff,  is,  to  restrict  him  to  the  taking  possession  of  so 
much  only,  as  he  gave  evidence  of  his  tittle  to  on  the  trial."  Spen- 
cer, Senator  8  Cowen.  427.  The  \\  or  A  tenernent  in  a  declaration 
is  sufficiently  certain.  1  Hayw.  24.  A  plaintiff  claiming  under  a 
deed  conveying  "the  balance  of  a  tract  of  land"  must  show  what 
the  balance  is  and  where  situate  or  he  cannot  recover.  3  Marsh. 
Rep.  (Ky  )  19.  It  is  not  necessary  to  name  the  Parish  or  Hamlet. 
4  Taunt.  071.  The  number  ot  messuages,  acres,  &c.  mentioned 
in  the  demise,  need  not  correspond  with  the  number  to  which  the 
lessor  claims  tittle.  He  may  declare  for  an  indefinite  number,  as 
ten  messuages,  ten  acres  of  meadow  land,  &c.  and  care  should  be 
taken  that  the  number  specified  in  the  demise  be  larger  than  the  num- 
ber claimed.  Adams,  Eject.  198.  Burr.  320.  In  Ohio  there  is  no 
reported  decision  upon  this  subject.  In  practice,  the  premises  are 
sometimes  discribed  specifically  by  7nefes  and  hounds,  and  some- 
times a  general  description  only  is  given,  as  ten  messuages,  five 
hundred  acres  of  arable  land,  &c.  Nor  is  it  necessary  to  name 
the  towns/lip  or  any  other  civil  division,  except  the  county  within 
which  the  lands  are  situated.  It  is  however  the  better  practice,  to 
specify  the  7netes  and  bounds  in  the  first  instance,  and  then  add  a 
general  description.  See  Precedents.  Post. 


Entry.  The  entry  of  the  plaintiff  need  not  be  alleged  to 
have  been  made  on  any  jiarticular  day,  though  in  the  precedents 
ft  is  usually  so  done.  It  is  sulTicicnt  if  it  be  declared  generally 
that  the  plaintiff  entered  by  virtue  of  the  demise.  Adams,  Eject. 
198. 


Ouster.  The  statement  of  ouster  is  necessary,  and  the  day 
on  which  it  is  stated  to  iiave  taken  place  should  be  after  the  com- 
mencement of  the  supposed  demise.  It  it  usual,  though  not  neces- 
sary to  mention  a  particular  day.  Cro.  Jac.  311.    Saund.  PI.  and 


174  EJECTMENT. 


PLEADINGS. 


Ev.  455,  A  mistake  in  the  statement  of  the  day,  especially  if  the 
words,  "afterwards,  to  wit"  arc  introduced  before  it,  would  not,  it 
seems,  be  material.    Cro.  Jac.  06.  B.  N.  P.  106. 


Notice  to  appear.  The  notice  should  be  directed  to  the  ten- 
ant in  possession,  by  his  name.  7.  T.  R.  477.  1  Chit.  Rep.  215. 
1  Moore  113,  2  Chit.  Rep.  179.  It  is  best  to  insert  both  Christian 
and  Surname.  1  Chit.  Rep.  573.  When  there  are  several  tenants 
in  possession,  it  is  usual  to  prefix  the  names  of  all  the  tenants  to 
each  declaration,  though  this  is  not  absolutely  necessary.  7  T.  R. 
477.  5  Moore  72.  The  term  should  regularly  be  mentioned  by 
name,  but  if  the  notice  and  declaration  otherwise  show  what  term 
is  meant,  it  will  be  immaterial.  Adams,  Eject.  103.  {a.)  The  notice 
should  be  regularly  subscribed  with  the  name  of  the  casual  ejector, 
but  it  will  suffice  if  it  be  subscribed  with  the  plaintiff's  name.  Barn. 
173.  3  T.  R.  351.  Saund,  PI.  and  Ev.  551.  The  notice  is  in  the  na- 
ture of  process,  and  cannot  be  aided  by  any  statement  of  the  person 
serving  the  declaration,  or  by  the  defendants  appearing  and  ex- 
cepting, unless  he  enter  into  the  common  rule.  3  Marsh.  Rep. 
(Ky.)   252.     Notice  to  appear  "on  the  first  day  of  the  next  term 

of  the  Circuit  Court"  without  naming  the  Court,  is  bad.   1 

Marsh.  Rep.  (Ky.)  154.  The  notice  may  be  amended  after  ser- 
vice, by  striking  out  one  day  and  inserting  another.  4  Halsted 
254.  The  notice  need  not  be  in  the  name  of  tke  Plaintiff,  but,  if 
in  the  name  of  the  lessor  of  the  plaintiff,  or  even  any  other  person, 
the  court  will  permit  the  rule  for  judgement  to  be  drawn  up.  5 
Barniv.  and   Jl  Id.  849. 


Amendments.     The  old  rules  in  regard  to  amendments  have 
been  relaxed  ;  and  the  demise,  term,  &c.  &c.  are  now  most  cor- 


(a.)  The  terms  of  our  Courts  being  changed  every  year  by  the  Legis- 
latnre,  it  would  seem  that  notice  to  appear  "at  the  next  Term"  would  be 
held  ^ood. 


EJECTMENT.  175 


PLEADINGS. 


redly  considered  as  formal  only,  and  may  be  amended  if  neces- 
sary. Adams  Eject.  2(y2.  Where  the  demise  was  laid  anterior  to 
the  time  of  the  entry  to  avoid  the  fine,  and  the  suit  was  staid  by 
injunction,  for  more  than  five  years  after  the  fine  was  levied,  so 
that  the  lessor  was  not  in  time  to  make  a  second  entry,  or  bring 
a  second  ejectment,  the  Court  permitted  him  to  change  the  day  of 
the  demise,  to  a  day  subsequent  to  the  day  of  entry.  Burr.  2417, 
<S.  P.  Adams,  Eject.  203.  This  permission  will  not  be  extended 
to  the  injury  of  the  defendant,  and  therefore  the  Court  will  not 
suffer  the  day  of  the  demise  to  be  altered  to  a  day  subsequent  to 
the  day  ot  tiie  delivery  of  the  declaration,  for  this  would  give  the 
lessor  a  right  of  action  which  did  not  exist  at  the  commencement 
of  his  suit.  Jidams  Eject.  204.  The  term  also  may  be  enlarged 
after  its  expiration  upon  payment  of  costs,  although  the  issue  be 
made  up,  and  the  cause  ready  for  trial.  2  W,  Bl.  940.  Cowp.  841. 
A  plaintiflf  ought  not  to  be  permitted  to  add  a  new  count  stating  a 
demise  after  the  commencement  of  the  suit,  but  if  such  amend- 
ment were  not  objected  to  by  the  defendant,  and  he  appears  to 
have  sustained  no  injury  in  consequence  of  it,  the  judgment  will 
not  be  reversed.  3  Lilt.  333.  The  declaration  may  be  amended 
as  in  other  actions.  2  Penn.  Rep.  710.  A  motion  to  file  a  new 
declaration,  the  original  being  lost  out  of  the  ofiice,  and  the  de- 
fendant served  with  a  notice  to  produce  a  copy,  was  refused.  1 
Murphy,  268.  An  amendment,  by  inserting  a  new  demise,  is 
generally  allowed,  of  course,  where  the  proposed  lessor  has  a 
subsisting  title.  1  Cowen,  15G.  Otherwise  where  the  statute  of 
limitations  has  attached.  Ibid.  The  plaintiff  may  amend  by 
changing  the  time  of  the  demise,  at  any  time  before  verdict,  on 
such  terms  as  will  impose  no  hardships  on  the  defendant.  3  Ilarr. 
^  Johns.  13.  So,  to  make  the  demise  subsequent  to  the  date  of 
his  title.  4  Bibb.  480.  Another  count  cannot  be  added  containing 
a  demise  from  another  person,  ami  for  a  tract  of  land  not  before 
claimed.  1  Marsh.  R(p.  (Ky.)  450.  The  demise  may  be  en- 
larged. 1  ILii/w.  501.  The  declaration  may  be  amended  after 
issue  joined,  by  introducing  a  new  claim,  but  such  introduction 
has  no  relation  back  to  the  service  of  notice ;  but  the  suit,  as  to 


176  EJECTMENT. 


PLEADINGS. 


the  new  claim,  originates  with  filing  the  amendment.    2  Marsh. 
Rep.  (Ky.)  19. 

It  is  doubtful  whether  a  Court,  under  any  circumstances,  will 
permit  a  new  count  to  be  added,  laying  a  demise  from  a  different 
person.  3  Litt.  237.  Several  demises  added  on  payment  of  costs, 
it  appearing  that  the  new  lessors,  had  a  subsisting  legal  title..  3 
Couvn.  356.  Cause  must  be  shown  by  affidavit  for  leave  to  add 
anew  demise.  6  Cowen.  39.  Contra,  2  Caine's  Rep.  261.  Cole. 
Cas.  49,  55.  2  Cable's  Rep.  177.  After  six  year's  service  of 
the  declaration,  leave  was  given  to  amend,  by  adding  new  demises, 
on  the  plaintiff's  paying  all  the  costs,  in  case  the  defendant  should 
choose  to  relinquish  his  defence.  1  Caine's  Rep.  251.  A  new 
demise  will  not  be  allowed  from  a  person  who  has  no  claim,  or 
any  subsisting  title  to  the  premises.  4  Joints.  4  Rep.  83.  The 
defendant  may  at  any  time,  move  to  have  the  demise  of  a  lessor, 
who  died  before  the  commencement  of  the  action,  struck  out  of  the 
declaration,  without  costs.  1  Caine's  Rep.  20.  1  Johns.  Cas. 
Cole.  Cas.  102.  3  Johns.  Rep.  259.  A  lessor  may  be  struck 
out  of  the  declaration,  on  affidavit  of  his  having  no  interest  in  the 
premises.  10  Johns.  Rep.  368.  The  general  rule  is,  that  a  lessor 
ought  to  have  a  subsisting  title  or  interest  in  the  premises ;  but 
under  special  circumstances,  the  Court  will  permit  his  demise  to 
be  retained.  Ibid.  The  date  of  the  demise  may  be  altered.  3 
Halsted,  366.  A  motion  to  enlarge  the  term  of  the  demise,  where 
judgment  was  rendered  in  1790,  was  refused  in  1822.  5  Harr.  6f 
Johns.  437.  A  party  being  prevented  from  suing  out  execution, 
by  an  injunction,  which  continued  in  force  for  many  years,  during 
which,  the  term  in  the  declaration  expired,  the  Court  would  not 
permit  it  to  be  enlarged,  unless  it  were  quite  clear  that  the  amend- 
ment would  work  no  injustice  to  the  opposite  party.  1  Barnio.  Sf 
Cress.  Rep.  121.  The  demise  cannot  be  enlarged  after  judgment 
and  expiration  of  the  demise,  though  the  proceedings  were  stayed 
by  injunction.  3  Bihb.  27.  The  date  of  the  demise  may  be  amend- 
ed, during  the  trial,  so  as  to  conform  to  the  title.  7  Cranch.  471. 
Declaration  amended  by  altering  the  time  of  the  demise,  which 
was  laid  before  the  title  accrued,  upon  payment  of  the  costs  of  the 


EJECTMENT.  177 


PLEADINGS. 

motion,  though  the  case  had  been  twice  brought  to  trial .  G  Cowen 
590.  The  demise  may  be  an.-- nded  after  non-suit,  on  the  ground 
that  the  lessor  was  a  feme  covert  at  the  time  of  the  demise.  2 
South.  850.  If  the  demise  expire  before  the  verdict  and  judgment 
in  the  Court  below,  error  lies.  3  Han-.  ^'  Johns.  228.  In  such 
case,  the  Court  below,  under  a  Procedendo  directing  a  new  trial, 
may  enlarge  the  term  of  the  demise.  Ihid.  An  amendment  may 
be  made  so  as  to  change  the  demise  from  a  joint  one  by  all  the 
lessors,  to  separate  demises  for  undivided  portions.  3  Harr.  6f 
Johns  378.  The  Court  will  exercise  a  discretion  in  allowing  an 
amendment,  but  when  the  Court  refuse  an  amendment  it  is  no 
ground  of  error.  9  Wheat.  576.  The  expiration  of  the  term 
previous  to  decision  on  an  appeal,  is  of  no  importance.  1  Hen  6f 
Munf.  177.  If  the  term  expire  before  trial,  leave  will  be  given  to 
amend.  1  Muvf.  177,  or  a  new  demise  may  be  added  on  payment 
of  costs.  18  JoJins.  Rep.  510.  If  the  o])jcction.  fn\  the  ground  cf 
variance,  is  made  at  the  trial,  and  the  plaintiff  is  non-suited,  it 
seejns,  that  the  Court  will  set  aside  the  non-suit,  and  give  leave  to 
amend  on  payment  of  costs.  Ibid.  "  The  enlargement  of  the  de- 
mise is  matter  of  form  and  it  is  error  under  the  act  of  March, 
1800,  if  the  (Jourt  refuse  it.  10  Sergt.  ^'  Rawle.  192."  A  motion 
to  enlarge  the  term,  in  order  to  support  an  execution,  was  refused 
after  a  lapse  of  thirteen  years  from  the  expiration  of  the  term,  and 
after  a  new  party  had  come  into  possession.  0  Binn.  115.  Where 
the  term  ex})ires  before  the  trial,  although  possession  of  the  pro- 
])erty  cannot  be  recovered,  yet  the  plaintiff' may  proceed  for  dama- 
ges for  the  trespass  and  for  the  ?nes7ie  profits.  1  Pel.  C.  C.  Rrp. 
291.  299.  Where  the  title  of  the  lessor,  being  a  life  estate,  ends 
before  trial,  the  plaintiff,  though  he  cannot  turn  the  defendant  out 
out  of  possession,  is  entitled  to  judgment,  so  as  to  enable  him  to 
recover  tlie  vicsnc  profits,  but  with  a  perpetual  stay  of  (execution. 
18  Johns.  Rrp.  295.  The  genci-al  rule  is,  that  a  })lainli(r  shall 
recover  according  to  his  right  at  the  time  of  the  suit  brought ; 
but  if  ptmding  the  suit,  his  title  is  divested,  cither  by  act  of  law  or 
his  own  act,  he  shall  not  recover  possession  against  the  will  of  the 
])arty  in  whom  the  title  is  vested,  but  he  is  entitled  t<^)  his  damages 
X 


178  EJECTMENT. 


PLEADINGS. 


and  costs.  4  Yeates  382.  "  So,  under  the  acts  of  1806,  and  1807, 
he  may  recover  nominal  damages  and  full  costs,  though  he  has 
conveyed  the  title  to  a  third  person  pending  the  suit.  4  Sergt.  6f 
Raicles.  130,"  When  the  rights  of  the  defendant  are  not  affected, 
or  he  consents,  the  name  of  a  lessor  may  be  struck  out,  on  motion 
of  such  lessor,  at  any  stage  of  the  proceedings,  though  he  originally 
consented  to  its  insertion,  but  it  must  be  on  payment  of  his  share 
of  the  costs.  5  Coiven,  418. 


EJECTMENT.  170 


DECLARATIONS. 


f^                      C   Supreme  Court,  or,  Court  of  Common 
)         Jrieas:  lenn. 


On  a  single  demise. 

John  Doe  complains  of  Richard  Roe, 

for  that  A.  B.  on at had  demised  to  the  said  John,  the 

following  lands  and  tenements,  to  wit :  \}ic7'e  set  out  the  ?netes  and 

bounds^  ;  and  also messuages, cabins, barns, 

stables, orchards, out-houses, yards, gardens, 

acres  of  arable  land, acres  of  meadow  land, acres 

of  pasture  land, acres  of  wood  land, acres  of  land  co- 
vered with  water,  and acres  of  other  land,  with  the  appurte- 
nances, situate  in  said  County  of  To  have  and  to  hold  the 

same  to  tne  said  John,  from  the  day  of in  the  year 

aforesaid,  for  and  during  the  term  of years  thence  next  ensu- 
ing :  *  By  virtue  of  which  demise  the  said  John  entered  into  the 
said  tenements  with  the  appurtenances,  and  was  possessed  thereof, 
for  the  term  aforesaid  :  And  the  said  John  being  so  thereof  pos- 
sessed, the  said  Richard,  afterwards,  to  wit,  on  with  force 

and  arms,  entered  into  the  said  tenements  with  the  appurtenances, 
and  ejected  the  said  John  therefrom,  and  other  wrongs  to  the  said 

John  then  and  there  did;  to  his  damage dollars;  \incrchj  iiomi- 

nar\  And  therefore  he  sues,  &c.  {a). 

By  S.  his  Atty. 


On  a  double  demise. 

[.7/  the  *  in  the  above  'prccede7it,  say, 
"And  also  for  that  C.  D.  on at had  demised  to  the  said 


((t)   For  the  manner  in  which  tlie  several  blanks  arc  to  be  filled,  See. 
ante.  p.  169  to  174. 


180  EJECTMENT. 


DECLAHATIONS. 


John, other  messuages,  &c.  [describing  as  before']  ;  to  have 

and  to  hold  the  same  to  the  said  John,  from  the day  of 

in  the  year  aforesaid,  for  and  during  the  term  of years  thence 

next  ensuing.  By  virtue  of  which  said  several  demises  the  said 
John  entered  into  the  said  several  tenements,  first  and  secondly 
above  mentioned,  with  the  appurtenances,  and  was  thereof  pos- 
sessed for  the  several  terms  aforesaid,  &c.  [Conclude  as  in  the 
last  precedent,  using  the  plural  number. 


Notice  to  tenant. 
Mr. 


Sir: 

I  am  informed  that  you  are  in  pos- 
session of,  or  claim  title  to,  the  premises  in  this  declaration  men- 
tioned, or  to  some  part  thereof,  and  I  being  sued  in  this  action  as 
a  casual  ejector,  and  having  no  title  to  the  said  premises,  do  advise 
you  to  appear  at  the  next  term  of  the  Court  of  Common  Pleas 

within  and  for  the  County  of ,  and  State  of  Ohio,  and  make 

yourself  defendant  in  my  stead,  otherwise  judgment  will  then  be 
entered  against  me  by  default,  and  you  will  be  turned  out  of  pos- 
session. 

Richard  Roe. 

Dated,  <fcc. 


EJECTxMENT.  181 


SEUVICB    OF    THE    DECLARATION. 

The  Declaration  being  a  kind  of  process  to  bring  the  party 
interested  into  Court,  its  dehvery  to  the  tenant  resembles  the  ser- 
vice of  a  writ ;  and  as  it  is  the  only  warning  which  the  tenant 
receives  of  the  proceedings  against  him,  the  Courts  are  careful  that 
a  proper  delivery  be  made,  and  that  the  nature  and  contents  of  the 
declaration  be  explained  at  the  time,  to  the  party  to  whom  it  is 
delivered.  Adams  Eject.  209. 


How    AND    UPON    WHOM    MADE. 

The  service,  in  general,  should 
be  made  personally  upon  the  party  in  possession  of  the  premises, 
at  the  time  of  the  service;  or,  when  the  possession  is  divided  among 
several,  upon  each  party  seperately.  B.  N.  P.  98.  When  per- 
sonal service  can  be  made,  it  is  immaterial  whether  it  be  upon  the 
premises  demised,  or  elsewhere,  Strang.  1064.  When  from  the 
wilful  or  accidental  absence  of  the  tenant,  personal  service  cannot 
be  made,  the  declaration  may  be  delivered  to  one  of  the  family, 
nailed  to  the  door  of  the  house,  or  in  some  other  manner  left  upon 
the  demised  premises  ;  and  such  service  will  be  deemed  good  or 
otherwise,  according  to  the  circumstances  of  the  case.  The  power 
exercised  by  the  Courts  in  this  respect  is  altogether  discretionary. 
Adams  Eject.  211.  When  a  printed  declaration  and  notice  were 
served  upon  an  illiterate  tenant,  who  was  told  merely  that  they 
were  a  declaration  in  ejectment,  without  any  further  explanation, 
but  it  appeared  irom  circumstances  that  he  must  have  known  the 
nature  of  the  papers,  the  Court  considered  this  a  good  service.  1 
Cowen.  222.  When  a  defendant,  on  being  served  with  a  declara- 
tion in  ejectment,"assented  to  the  character  of  tenant  in  possession, 
and  afterwards  appeared  and  pleaded ;  held,  that  it  was  sullicient 
evidence  for  a  jury  to  find  that  he  was  tenant  in  possession,  al- 
though it  also  appeared 'that'' he  was  in  the  situation  only  of  a 
servant,  and  managed  the  business  for  the  real  owner  on  the 


182  EJECTMENT. 


sEUVicr:  of  the  declaration. 

premises.  2  Barn.  4'-  Aid.  371.  Where  two  tenants  are  in  pos- 
session of  the  same  premises,  service  upon  one  of  them  will  be 
good  service  upon  both  ;  but  service  upon  the  wife  of  one  of  two 
tenants  will  not  bind  the  cotenant.  1  B.  ^-  P.  309.  In  ejectment 
for  premises  which  had  been  demised  on  lease  to  one  person,  who 
had  underlet  to  others,  it  was  held  to  be  necessary  to  serve  all  the 
under-tenants  with  a  copy  of  the  declaration.  4  Barn.  <^'  Cress. 
259.  The  return  of  the  Marshall  that  he  had  served  the  declara- 
tion on  A.  and  B.  on  the  premises,  by  shovving  it  to  A.  and  deli- 
vering a  copy  at  the  dwelling  house  of  A.  and  B.  on  the  premises, 
said  B,  being  absent,  and  the  copy  left  in  the  presence  of  his  wife, 
is  defective,  in  not  stating  that  a  copy  of  the  declaration  was  deli- 
vered to  A.  and  another  to  the  wife  of  B.,  and  that  the  notice  was 
read  and  explained  to  them.  It  should  also  have  been  stated  that 
A.  and  B.  were  tenants  in  common.  3  JVash.  Cir.  Ct.  Rep.  366. 
If  both  tenants  inhabit  one  house,  and  this  appears  by  the  return, 
it  is  sufficient  to  deliver  one  copy.  Ibid.  A  tender  of  the  declara- 
tion, and  reading  the  notice  aloud,  though  the  tenant  refuse  to 
receive  it,  or  run  away  and  shut  the  doors,  or  threaten  with  a  gun 
to  shoot  the  person  serving  it,  if  he  should  come  near ;  throwing 
the  declaration  in  at  a  window,  sticking  it  against  the  door,  or 
leaving  it  at  the  house,  upon  the  servants  refusing  to  call  their 
master,  and  the  like,  have  been  held  good  service.  Adams  Eject. 
214. 


By    WHOM    MADE. 

Any  competent  person,  whether  an  officer 
of  the  law  or  not,  may  serve  the  declaration.  2  B.  ^'  P.  120.  3 
Wash.  Cir.  Ct.  Rep.  356.  The  practice  in  Ohio  varies  in  different 
Circuits  ;  in  some,  a  declaration  is  filed  with  the  Clerk,  who  makes 
out  a  certified  copy  under  the  seal  of  the  Court,  and  this  copy  is 
delivered  to  the  Sheriff,  and  by  him  served  upon  the  tenant ;  in 
others,  the  declaration  is  first  given  to  the  Sherift',  and  he  makes 
out  the  copy  and  5erves  it  upon  the  tenant,  retaining  the  original. 


EJKCTMENT.  183 


SEKVICE    OF    TUB    DECLARATION. 

upon  wliich  he  makes  his  return  at  the  next  term  of  the  Court ; 
and  in  other  Circuits,  a  copy  is  served  by  an  agent  or  friend  of  the 
plaintiff;  and  the  original  is  either  filed  with  the  Clerk,  in  vacation, 
or  retained  in  the  hands  of  the  Attorney  until  the  term.  The  latter 
method  is  most  simple  and  least  expensive.  The  certified  copy, 
with  the  seal  of  the  Court,  together  with  the  mileage  and  service 
of  the  Sheriff;  in  some  cases,  form  no  inconsiderable  item  of  ex- 
pense, and  if  the  tenant  make  default,  all  the  costs,  of  course,  fall 
upon  the  ])laintiflr. 

An  affidavit  of  service  is  necessary  only  where  it  is  not  done 
by  an  officer  of  the  Court.  3  Wash.  Cir.  Ct.  Rej).  356. 


When  it  must  be  made. 

By  statute,  vol.  29,  p.  08,  §  54,  55, 
the  declaration  and  notice  must  be  served  at  least  ten  days  before 
term.  The  doctrine  of  notice  to  quit,  as  it  is  applied  in  actions  of 
ejectment,  depends  on  statutory  provisions,  and  on  rules  of  Court, 
which  have  often  been  changed,  and  differ  materially  in  different 
tribunals.  The  only  notice  required  by  the  laws  of  this  State,  is  a 
notice  of  ten  days  to  the  tenant  in  possession,  before  a  plaintiff"  in 
ejectment  can  proceed  against  the  casual  ejector.  This  notice 
has  been  considered  as  legally  given  by  the  service  of  the  declara- 
tion with  the  common  notice  attached,  ten  days  before  the  first  day 
of  the  term  to  which  it  is  returned.  2  Ohio  Rep.  2G3.  Ohio  Conds. 
356.  Quere :  If  the  declaration  be  served  within  the  ten  days 
before  term,  is  the  tenant  bound  to  appear  at  the  second  term,  or 
must  the  jjlaintiir  commence  rfe  7iovo.  ((i). 


(a)  The  doctrine  established  in  2  Ohio  Rep.  263,  Ohio  Conds.  li.^G,  has 
been  modified  by  subsequent  decisions  of  the  Sui)reme  Court  upon  the  Cir- 
cuit. The  following  case,  dccid<Hi  in  the  Supremo  Court  of  .Icffcrson 
County,  in  |h;5I,  is  taken  from  the  manusc:ipt  of  Judge  Wuujmt,  who 
l)rcsided  iw  the  cause.  Lessee  of  .'Maynard  v.  Cable.  Jt  appeared  in  this 
case,  that  the  parties  had  entered  into  an  ayroement  to  c.xclnnfje  lands, 
under  which  tlie  (lolendant  was  put  iiilo  possession  of  the  lands  in  coniro- 
versy.     The  agreement  contained  niutual  covenants  to  convey  at  a  future 


184  EJECTMP^NT. 


SERVICE    OF    THE    DECLARATION. 


Affidavit  of  service. 

The  affidavit  in  general,  must  state 
that  the  declaration  was  delivered  to  the  tenant  in  possession,  or 
his  wife,  &c.  and  that  the  notice,  thereto  annexed,  was  read  and 
explained  at  the  time  of  the  delivery;  or  generally,  that  the  tenant 
was  informed  of  tlie  intent  and  meaning  of  the  service.  Adams 
Eject.  217.  Affidavit  of  service  is  necessary  only  where  it  is  not 
done  by  an  officer  of  the  Court.  3  Wash.  Cir.  Ct.  Rep.  35G.  The 
affidavit  should  regularly  be  made  by  the  person  who  served  the 
declaration,  though  the  Court  have  been  satisfied  with  the  affidavit 
of  a  person,  who  saw  the  declaration  served  upon,  and  heard  it 
explained  to,  the  tenant  in  possession.  2  B.  ^  P.  120.  The  affida- 
vit must  alledge  that  the  persons  were  tenants  in  possession,  and 
that  they  were  served  with  copies  of  the  declaration  and  notice. 
4  Bihh.  107.  Whether  the  tenant  is  in  possession,  is  not  a  ques- 
tion upon  the  merits,  but  merely  of  irregularity,  and  affidavits  may 
be  heard  upon  it  on  both  sides.  1  Cotcen.  222.  It  must  appear  by 
affidavit  that  the  declaration  and  notice  were  served  upon  the 
tenant  in  possession,  before  a  default  can  be  taken  against  the 
casual  ejector.  Ihid. 


FoRn 


M    OF    AFFIDAVIT. 

John  Doe  ex  dem.  A.  B. 

vs. 
Richard  Roe. 


C.  D.  of makes  oath,  and  says 

that  he,  on did  personally  serve  E.  F.  tenant  in  possession  of 


day — verdict  fur  the  defendant,  euL'ject  to  the  opinion  of  the  Court.  Per 
Curiam.  The  entry  of  the  defendant  was  nut  turtiuus,  but  lawful.  His  cove- 
nant to  convey  is  outstanding,  and  no  means  have  been  taken  l^y  restoring 
the  consideraliun  or  otherwise,  to  rescind  the  contract.  Tiie  filing  a  decla- 
ration in  ejectment  does  not,  in  our  opinion,  rescind  the  contract.  In  this 
class  of  cases  some  notice  or  demand  should  he  given  to  the  tenant,  and  so 
are  the  authorities.  10  Johns.  Rip.  3ri5.  13  East.  210.  9  Johns.  Rep.  267. 
7  T.  R.  8:5.     Jiulgment  for  drjendant. 


EJECTMENT.  18S 

SERVICE    OF    THE    DECLARATION. 

the  premises  in  the  within  declaration  mentioned,  or  of  part  thereof, 
with_;  a  true  copy  of  the  within  declaration  and  notice,  and  at  the 
same  time  acquainted  the  said  E.  F.  with  the  intent  and  meannig 
of  the  said  declaration  and  notice. 

C.  D. 
Sworn  to,  &c. 


18G  EJECTMENT; 


JCD6KJ5NT    AOAIWST    CASrAL    EJECTOH    ON    DEFAtnCT. 

"The  plaintiff,  on  affidavit  of  the  delivery  of  the  Declaration  in 
ejectment,  shall  have  judgment  against  the  casual  ejector,  unless 
the  tenant  in  possession,  or  landlord,  or  other  proper  person,  shall 
apply  lo  be  made  defendant,  and  enter  into  the  common  consent 
rule,  within  the  term,  to  which  the  said  tenant  had  notice  to  ap- 
pear. "  Stat.  vol.  29,  p.  55.  Under  this  provision,  judgment 
ci^uiiist  the  casual  ejector,  may  be  entered  at  any  time  during-  the 
term,  subject  however  to  be  vacated,  if  the  defendant  should 
afterwards  appear  and  enter  into  the  consent  rule,  during  the  same 
term. 

Upon  service  of  the  declaration,  if  no  application  be  made  to 
the  Court  by  the  tenant,  or  other  person  claiming  title,  for  leave 
to  defend,  a,  judgement  by  default,  passes  as  of  course.  4  Ohio  Rep. 
442.  Ohio  Conds.  850, 


Form  or  a  Judgment  by  Default, 


John  Doe  ex  dem.  A.  B. 
Richard  Roe. 


;! 


This  day  came  the  said  John  Doe 
by  his  attorney;  and  the  said  Richard  Roe  though  solemnly  called 
came  not  but  made  default;  Therefore  it  is  considered  that  the  said 
John  Doe  recover  against  the  said  Richard  Roe  his  said  term  yet 
to  come  in  the  tenements  aforesaid  with  the  appurtanances. 

Upon  this  judgment,  a  writ  of  habere  facias  issues,  of  course, 
upon  the  Praecipe  of  the  plaintiff  and  the  Sheriff,  will  execute  the 
same  by  giving  possession  of  the  premises  to  the  lessor  of  the 
plaintiff.    See,  Executions,  post. 

Courts  of  Justice  are  liberal  in  their  rules  for  setting  aside 
judgments  against  the  casual  ejector,  although  regularly  obtained; 
and  will  grant  them  even  after  execution  executed,  upon  affidavit 


EJECTMENT.  U-J 


JUDGMENT    AGAINST    CASUAL    EJECTOR    ON    DEFAULT. 

of  merits,  or  other  circumstances,  which  at  their  discretion  they 
may  deem  sufficient.  Adams,  Eject.  224.  Burr.  199G.  Stran.  915, 
5  Taunt.  305.  The  regular  mode  of  setting  aside  such  judge- 
ments is  by  rule  of  Court,  for  the  party  to  redeliver  the  possession; 
but  if  circumstances  require  it,  the  Court  will  order  a  writ  of  res- 
titution. Adams,  Eject.  225.  W.  Blk.  892.  When  the  tenant 
swears  to  merits,  and  no  trial  has  been  lost,  a  regular  default  will 
be  set  aside  on  payment  of  costs,  to  let  in  the  tenant,  to  defend  his 
possession.  4.  Johns.  Rep.  489.  The  Court  will  go  further  to 
protect  the  possession,  where  it  can  be  done  without  injury  to 
the  plaintiff,  than  it  is  willing  in  other  cases  to  proceed.  1  Caines 
Rep. 503.  Where  there  has  been  a  judgement  by  default  against 
the  casual  ejector,  and  a  habere  facias  issued  thereupon,  the  Court 
will,  on  affidavit  of  fraud  or  surprise,  and  of  a  real  defence,  and  on 
payment  of  costs  on  the  judgment,  set  aside  the  habere,  and  ordw 
restitution.  2  Halstead,  161. 


188  EJECTMENT. 


APPEARANCE  AND  DEFENCE. 
Who  may  DEFEND. 

It  is  lawful  for  the  Court,  on 
application  for  that  purpose,  to  make  the  tenant  or  landlord,  or  both, 
or  any  other  person  claiming  title  to  the  premises,  defendant,  in 
the  place  of  the  casual  ejector.  Stat.  vol.  29.  p.  68.  §  54.  The 
Court  have  no  power  to  compel  the  tenant,  or  any  one  else,  to 
make  defence;  a  discretionary  power  only  is  vested  in  the  Court, 
to  admit  the  tenant,  landlord,  or  other  proper  person,  upon  appli- 
cation for  that  purpose.  4  Ohio,  Rep.  442.   Ohio  Conds.  850. 

The  defendant's  name  will  not  be  struck  out,  in  order  to  substi- 
tute the  landlord,  without  the  consent  of  the  plaintiff,  but  the 
landlord  may  be  made  a  co-defendant.  3  Sergt.  and  Raivle.  130.   A 
motion  to  admit  a  landlord  to  defend,  may  be   grounded  on  the 
affidavit  of  his  agent  shewing  the  relation  of  landlord  and  tenant 
between  him  and  the  tenant  in  possession.   1  Coive^i  134.     A  party 
will  not  be  admitted  to  defend  on  an  affidavit  that  he  claims  title 
to  the  premises,  and  has  a  real  and  substantial  defence  to  make.  4 
Caines,  Rep.  151.      If  a  person  be  admitted  to  defend,  on  pay- 
ment of  costs,  and  after  entering  into  the  consent  rule,  keep  out  of 
the  way,  to  avoid  being  served  with  a  copy  of  the  ca.  sa.  against 
the  casual  ejector,  a  rule  will  be   granted   to  show  cause,  why 
an  attacliment  should  not  issue  against  him  ;    and  that  service  of 
the  rule  at  the  defendant,s  house  shall  be  sufficient.  2  Caines,  Rep. 
368.  A  mortgagee  in  possession  may  be  let  in  to  defend.   1 1  Johns. 
Rep.  407.      The  -landlord  will  not  be  permitted  to  defend  alone, 
until  the  tenant  first  neglect  or  refuse  to  appear,  which  should  be 
stated  in  the  affidavit  for  the  motion.    1  Coicen.  134.     A  person 
claiming  to  be  let  in  to  defend  must  show  that  his  title  is  connected 
to  and  consistent  with  the  possession  of  the  occupant.  1  Bibb.  128. 
A  landlord  proving  that  the  tenant  entered  on  the  land  under  him, 
will  be  permitted  to  defend  the  action,  though  it  appears  that  the 
tenant  has  been  found  guilty  of  a  forcible  detainer  against  the  land- 
lord. 3  Bibb.  266.     One  claiming  in  opposition  to  the  title  of  the 
tenant,  is  not  entitled  to  be  admitted  defendant  with  the  tenant.  2 


EJECTMENT.  189 


APPEARANCE    AND    DEFENCE. 


Cowen.  594.     The  tenants  in'possession  arc  the  proper  defendants 
to  an  action  of  ejectment,  although  the  landlord  has  a  right  to  be 
made  a  defendant,  to  prevent  his  being  injured  by  a  combmation 
between  the  lessor  and  liis  tenant ;  but  he  may  waive  liis  right, 
or  having  asserted  it,  may  relinquish  it  by  consent  of  the  plaintiff. 
2  Call.  408.     Every  person  may  be  considered  as  a  landlord,  for 
the  purpose  of  being  admitted  to  defend,  "whose  title  is  connected 
to,  and  consistent  with,  the  possession  of  the  occupier."  1  Wend. 
316      A  person  may  be  admitted  to  defend  as  landlord,  between 
whom  and  the  defendant,  a  privity  of  interest  exists,  although  he 
do  not  receive  rents,  which  is  not  the  true  test.    Cole.   Cas.  56. 
The  assignee  of  a  mortgagee  may  be  let  in  to  defend.   17  Johns. 
Rep.  112.     When  the  landlord  unites  with  the  tenant  in  defending 
the  suit,  it  is  sufficient  to  prove  the  tenant  to  have  been  in  posses- 
sion at  the  commencement  of  the  suit,  and  his  possession  is  deemed 
to  be  the  possession  of  the  landlord.   11  Johns.  Rep.  434.    When 
the  plaintiff  claims  to  recover  no  more  than  the  interest  of  the 
tenant  in  the  premises,  subject  to  the  rights  of  the  landlord,  or 
claims  nothing  inconsistent  with  the  rights  of  the  landlord,  the 
landlord  will  not  be  let  in,  for  he  has  no  interest  to  defend.    1 
Wend.  103.    When  the  lessor  claims  an  interest  inconsistent  with 
the  title  of  the  landlord,  the  latter  may  defend.    1   Wend.  317. 
Persons  cannot  be  admitted  defendants  after  their  agent,  whom 
they  permitted  to  defend  for  them,  has  been  admitted  and  confess- 
ed a  judgment.    5  Litt.  129.     If  a  party  should  be  admitted  to 
defend  as  landlord,  whose  title  is  inconsistent  with  the  possession 
of  the  tenant,  the  lessor  of  the  plaintiff  may  apply  to  the  Court, 
and  have  the  rule  discharged  with  costs,    uidaihs  Eject.  232.     If, 
however,  he  neglect  to  do  so,  and  the  party  continue  upon  the 
record  as  defendant,  such  party  will  not  be  allowed  to  set  up  such 
inconsistent  title  as  a  defence  at  the  trial.  4  M.  ^  S.  347.     The 
affidavit  on  which  to  move  that  the  landlord  may  defend,  should 
show  the  relation  of  landlord  and  tenant.  That  the  tenant  claims  no 
interest  except  as  tenant  to  the  landlord,  is  not  sufTicicnt.  6  Cnvrn. 
594.     On  motion  to  be  received  to  defend  as  landlord,  it  is  com- 
petent for  tiie  plaintiff  to  show  that  the  landlord  had,  after  the  lease, 
conveyed  away  all  his  interest  in  tlie  premises.  5  Coircn.  117. 


190  EJECTMENT. 


APPEARANCE  AND  DEFENCE. 


('ONSEIfT  RULE. 

The  common  consent  rule,  as  known  in 
England,  and  in  some  of  the  United  States,  has  been  abolished  by 
a  rule  of  the  Supreme  Court,  adopted  at  the  December  term  of 
the  Court  in  Bank,  1831.  This  rule  declares,  that  in  all  cases 
where  any  person  is  admitted  to  defend  in  ejectment,  in  place  of 
the  casual  ejector,  he  shall  be  required  to  confess  the  lease,  entry 
and  ouster,  to  admit  himself  in  possession  of  so  much  of  the  pre- 
mises as  he  defends  for,  defining  the  extent  and  boundaries  of  that 
possession,  and  to  plead  not  guilty,  all  which  shall  be  reduced  to 
writing  and  signed  by  counsel,  whereupon  the  issue  shall  be  con- 
sidered as  made  up,  without  any  change  of  the  declaration.  Ohio 
Conds.  Rep.  4.     The  Form  may  be  as  follows : 


John  Doe  ex  dem.  A.  B.  ^ 

vs.  > 

Richard  Roe.  ) 

On  motion  to  the  Court,  or,  by  consent 
of  parties.  It  is  ordered  that  John  Smith  be  made  defendant  herein 
in_the  place  of  the  now  defendant  Richard  Roe. 

This  order  is  entered  upon  the  journal,  and  thereupon  the  con- 
sent^rule  is  drawn  up  thus: 


John  Doe  ex  dem.  A.  B.  \ 

vs.  > 

John  Smith.  ) 

And  the  said  John  Smith  comes 
and  confesses  the  lease,  entry  and  ouster  in  the  said  declaration 
mentioned,  and  admits  himself  to  be  in  possession  of,  &c.  [defining 
the  extent  and  boundaries  of  so  much  of  the  premises  as  he  defends 
for^  parcel  of  the  premises  in  the  said  declaration  mentioned;  and 


EJECTMENT.  IQI 


APPEABAJfCE    AND    DEFENCE. 


for  plea  says,  that  he  is  not  guilty  of  the  trespass  and  ejectment  in 
the  said  declaration  alleged  against  him,  and  of  this  he  puts  himself 
upon  the  country,  and  the  said  John  Doc  doth  the  like. 

By  T.  his  Atty. 


The  consent  rule,  thus  prepared,  is  filed  -with  the  Clerk,  and  the 
cause,  without  any  change  in  the  declaration,  is  considered  as  at 
issue,  and  is  thenceforward  entitled,  John  Doe  ex  deni.  A.  B.  or 
The  Lessee  of  A.  B.  vs.  John  Smith,  and  under  this  title  is  con- 
tinued on  the  docket  until  final  judgment  and  execution. 

When  two  defendants  are  sued  jointly,  they  have  no  right  to 
enter  into  separate  consent  rules  in  name  of  each  alone.  3  Cowen. 
356. 

When  the  action  is  brought  by  a  joint  tenant,  parcener,  or  ten- 
ant in  common,  against  his  companion,  to  support  which,  an  actual 
ouster^is  necessary,  the  defendant  ought  to  apply  to  the  Court  upon 
affidavit  for  leave  to  enter  into  a  special  rule,  confessing  the  lease 
and  entry,  but  not  ouster,  and  tliis  special  rule  will  always  be  grant- 
ed, unless  it  appear  that  the  claimant  has  been  actually  obstructed 
in  hisjoccupation.  Mams  Eject.  236.  Burr.  1895.  2  Taunt.  397, 
18  Johns.  Rep.  398.  An  affidavit  that  the  tenant  "claims  as  tenant 
in  common  with  the  lessors^of  the  plaintiff,  and  that  as  he  is  ad- 
vised by  counsel  and  believes,  he  is  tenant  in  common"  with  them, 
is  sufficient  to  entitle  him  to  enter  into  the  consent  rule  specially. 
6  Cowen.  391.  2  Ih.  585.  But  an  affidavit  "that,  as  he  this  depo- 
nent, verily  believes,  this  ejectment  will  involve  a  question  between 
tenants  in  common"  is  not  sufficient.  Ibid.  To  obtain  leave  to 
enter  into  the  consent  rule  specially,  the  defendant  must  apply  to 
the  Court,  and  is,  therefore,  entitled  to  have  the  costs  of  such  appli- 
cation taxed  in  the  final  bill  of  costs,  if  he  be  successful.  4  Cowen. 
16.  The  lessor  of  the  plaintiff,  is  not  bound,  of  course,  to  enter  into 
a  special  consent  rule,  but  only  on'application  to  the  Court.  2 
Cowen.  442.  If  the  defendant  claim  title  as  tenant  in  common,  he 
cannot  object  that  no  actual  ouster  was  proved  at  the  trial.*  4 
Johnt    Rep.  311.     In  an  action  by  one  tenant  in  common,  who 


192  EJECTMENT. 


APPEARANCE    AND    DEFENCE. 


has  not  been  ousted,  against  his  cotenant,  the  latter  may  enter  into 
the  consent  rule,  where  he  does  not  dispute  the  title,  as  to  part  of 
the  premises  only,  and  the  plaintiff  may  take  judgment  as  to  the 
residue,  and  recover  the  mesne  profits  thereof  from  his  cotenant. 
11  Johns.  Rep.  461.  It  seems,  that  in  such  case,  when  the  title  is 
not  denied,  the  tenant  need  not  stipulate  to  confess  ouster.  Ihid, 


EJF.CTMP.NT.  ll>3 


CONSOLIDATION. 


When  ijjveiul  tenants  are  in  possession,  to  whom  the  claimant 
dehvers  declarations  for  dillerent  premises,  the  Court  will  not  join 
them  in  one  action,  on  the  motion  of  either  party,  ahhough  the 
claimant  has  but  one  title  to  all  the  lands;  for  if  the  motion  be 
made  on  the  part  of  the  plainlifl"  the  Court  will  object,  that  each 
defendant  nmst  have  a  remedy  for  his  costs,  which  he  could  not 
have  if  all  were  joined  in  one  declaration,  and  the  plaintiff  pre- 
vailed only  against  one  of  them;  and  if  it  be  made  on  the  part  of 
defendants,  that  the  lessor  might  have  sued  them  at  ditterent  ti:nes, 
and  it  would  be  obliging  him  to  go  on  against  all,  when  perhaps  he 
might  be  ready  against  some  of  them  only.  Adams  Eject.  237. 
Strang.  1149.  But  when  several  ejectments,  are  brought  for  the 
same  premises,  upon  the  same  demise,  the  Court  on  motion  will 
order  them  to  be  consolidated.  7  T.  11.  477.  Adams  Eject.  237. 
Also,  when  the  premises  are  different,  though  the  Court  will  not 
consolidate  the  actions,  yet  where  thirty-seven  actions  were 
brought  against  separate  individuals,  and  all  depending  upon  the 
same  title,  JiOrd  Kenijon  said  it  w'as  a  scandalous  proceeding  on 
\\\v.  part  of  the  claimant,  and  ordered  the  proceedings  in  all  the 
cases  to  be  stayed,  and  abide  the  event  of  a  verdict  in  one  of  them. 
2  Sell.  Prac.  111.  Adams  Eject.  237.  When  a  number  of  causes 
are  brought  and  all  depend  u[)i»n  the  same  title,  ami  the  questions 
to  be  litigated,  and  the  evidence  are  the  same  in  all,  it  is  comj)etent 
for  either  party  to  make  an  application  to  the  Court,  that  only  one 
of  the  causes  be  tried;  ami  that  the  plaintiir  be  not  prejudiced  by 
his  omission  to  try  the  others;  and  in  a  clear  case,  that  they  abide 
the  event  of  the  case  to  be  tried.  In  passing  upon  such  a  motion, 
the  Court  will  be  guided  by  the  admission  of  iIk;  j>arly  against 
whom  the  motion  should  be  mad<'.  If  the  allidavits  of  the  parties 
should  agree  that  the  points  of  in(|uiry  and  the  evidence  would  be 
the  same  in  all  the  causes,  the  motion  would  bo  grantf'd.  If  they 
should  disagree,  though  they  should  only  leave  the  matter  in  doubt, 
the  motion  would  be  denied.    1  Cniirn.  7H.  S.  P.  5  Coiren.  282. 

Z 


194  EJECTMENT. 


CONSOLIDATION. 

Though  a  plaintiff  cannot  compel  two  defendants,  having  several 
interests,  to  submit  to  a  joint  trial,  yet  they  may  conclude  them- 
selves, by  a  joint  appearance  and  pica.  4  Yeates.  212.  Defend- 
ants, after  they  have  taken  a  joint  defence,  are  not  permitted  at  the 
trial  to  sever  this  defence.  1  Harr.  Sf  Johns.  182. 


PLEAS    IN    BAR. 

Not  Guilty,  is,  in  general,  the  only  admissible  plea  in  ejectment. 
Adams  Eject.  243.  For  the  form  of  this  plea,  and  the  time  when 
to  be  pleaded.  See,  Consent  Rule,  ante.  p.  190. 

Matter  of  defence  arising  after  issue  joined  must  be  pleaded 
puis  darrein  continuance.  3  Cowen.  75.  A  release  from  the 
lessor,  after  issue  joined,  cannot  be  plead,  John  Doe  being  the  real 
plaintiff  on  the  record.  4  M.  ^  S.  300.  19  Johns.  Rep.  168.  It 
is  no  cause  of  Abatement  that  the  plaintiff  entered  into  possession 
of  the  premises  pending  the  action.  1  Root  73.  The  death  of  the 
lessor,  will  not  abate  the  action,  nor  can  it  be  pleaded  p^ds  darrein 
continuance.  Strang.  1055.  Adams  Eject.  289.  18  Johns.  Rep. 
495.  1  Wend.  27.  3  Wend.  153.  2  Bihh.  148.  Nor  is  the  action 
abated  by  the  death  of  the  defendant.  Stat.  vol.  29,  p.  71,  §  72. 


EJECTMENT.  195 


ORDER    FOR    SURVEY. 


The  Lessee  of  A.  B.  i 

vs.  > 

John  Smith.  ) 

By  consent  of  parties,  or,  on  motion 
of  the  plaintiff,  or,  defendant,  it  is  ordered  that  the  Surveyor  of  this 

County  do  go  upon  the  lands  in  controversy  on  the day  of 

(a)  if  fair,  if  not,  the  next  fair  day,  and  survey  and  lay  off  the 
same,  as  either  party  shall  require,  and  return  four  fair  plats  and 
reports  thereof,  to  the  next  term  of  this  Court  together  with  the 
testimony  of  such  witnesses  as  may  be  brought  before  liim  by 
either  of  the  parties,  touching  the  lines  and  corners  of  the  lands  in 
controversy. 


(a)   Or,  "  on  such  day  as  the  plaintiff,  or,  defendant,  shall  appoint,  giving 

the  adverse  party days'  notice,"  &c.     The  statute  is  silent  as  to  the 

time  when  notice  must  be  given;  and  if  the  order  do  dot  specify  the  num- 
ber of  days,  a  reasonable  notice  must  be  given.  The  Surveyor  may  call 
upon  the  Sheriff  of  the  County  to  remove  all  force,  &c.  Stat.  vol.  29,  p. 
401,  ^  10.  The  order  for  a  survey  is  almost  a  matter  of  course,  and  ia 
allowed  in  all  cases,  upon  motion,  unless  good  cause  be  shown  against  it. 


196  EJECTMENT. 


VERDICT    AND    JUDGMENT FOR    FLAINTIFF. 


The  Lessee  c?l"A.  B.  ^ 

vs.  [ 

John  Smith.  ) 

This  day  came  the  parties  by  their 
attorneys,  and  thereupon  came  a  jury,  to  wit,  E.  F.  &c.  who  being 
empannelled  and  sworn  the  truth  to  speak  upon  the  issue  joined 
between  the  parties,  upon  their  oaths  do  say,  that  the  said  John 
Smith  is  guilty  of  the  trespass  and  ejectment,  or,  the  several  tres- 
passes and  ejectments,  laid  to  his  charge,  in  manner  and  form  as 
the  said  John  Doe  hath  complained  against  him,  and  they  assess 
the  damages  of  the  said  John  Doe,  by  reason  thereof,  to  one  cent: 
Therefore,  it  is  considered  that  the  said  John  Doe  recover  against 
the  said  John  Smith  his  said  term,  or,  terms,  yet  to  come  of  and  in 
the  teaements  aforesaid  with  the  appurtenances,  and  also  his  said 
damages  by  the  jurors  aforesaid'  assessed,  together  with  his  costs 
herein  expended,  taxed  to dollars. 


A  verdict  being  for  the  plaintiff,  for  the  lands  laid  down  in  a 
survey  made  in  the  cause,  as  comprehended  within  certain  lines 
described  by  the  jury;  a  judgment  that  the  plaintifi'  recover  his 
term  yet  to  come,  of  and  in  the  lands  in  the  declaration  mentioned', 
is  erroneous.  2  Wash.  276.  Tlie  judgment  must  be  for  the  pre- 
mises mentioned  in  the  declaration.  It  is  error  to  take  a  judgment 
for  the  land  in  the  plat  described.  3  Marsh.  Rep.  (Ky.)  136.  In 
ejectment  against  several  defendants,  who  possessed  the  premises 
in  separate  parts,  and  who  entered  into  the  consent  rule  and  plead- 
ed jointly,  the  jury  found  each  defendant  separately  guilty,  as  to 
that  part  of  the  premises  in  his  separate  possession,  and  not  guilty 
as  to  the  other  parts  possessed  by  the  other  defendants;  the  verdict 
is  good,  and  the  plaintiff  is  entitled  to  judgment  against  all  the 
defendants,  severally,  according  to  the  findii^  of  the  jury.  5  Johns. 
Rep.  278.    When  several  defendants  appear  and  plead  jointly,  and 


EJECTMENT.  197 


VERDICT    AND    JUDGMENT FOU    PLAINTIFF. 

enter  into  the  consent  rule  jointly,  the  plaintiff  is  bound  to  prove  a 
joint  possession  of  all  the  defendants;  and  if  on  the  trial  it  appear 
that  two  of  the  defendants  occupied  distinct  parcels  in  severalty, 
and  that  the  other  defendants  possessed  the  residue  of  the  premises 
jointly,  the  plaintiff  can  have  judgment  only  against  the  defendants 
holding  jointly^  and  the  defendants  holding  in  severalty,  will  be 
entitled  to  judgment.  2  Johns.  Rep.  438.  A  judgment  for  the 
plaintiff  on  a  single  demise,  contained  in  a  single  count,  that  he 
recover  his  term  in  two  parcels  of  land,  being  erroneous  as  to  one 
parcel,  is  so  in  ioto.  Per  Spencer,  8  Cowen.  40G.  Otherwise, 
perhaps,  where  the  declaration  contains  more  than  one  count,  lb. 
Where  the  title  of  the  lessor,  being  a  life  estate,  ends  before  the 
trial,  the  plaintiff  is  entitled  to  judgment,  but  with  a  perpetual  stay 
of  the  writ  of  possession,  so  as  to  enable  him  to  bring  an  action  for 
the  mesne  profits.  18  Jolnis.  Rep.  295;  The  jury  may  find  a 
general  verdict  for  the  plaintiff,  if  the  defendant  produce  a  patent 
of  elder  date  for  a  part  of  the  land,  without  designating  what  part. 
4  Bibb.  285.  When  the  declaration  contains  two  demises,  one 
valid  and  the  other  void,  and  the  judgment  is,  that  the  plaintiff 
recover  his  term,  in  the  singular,  it  shall  be  adjudged  to  have  been 
rendered  on  the  valid  demise.  3  Litt.  334.  If  several  demises  are 
laid  in  the  declaration,  from  several  lessors,  and  the  Court  give 
judgment  for  the  plaintiff  to  recover  "  his  term  yet  to  come,"  the 
judgment  will  be  sustained,  and  the  plaintiff'  can  only  have  one 
execution.  3  Rand.  462.  The  usual  judgment  is  for  the  premises 
in  the  declaration  mentioned,  and  a  judgment  for  all  the  lands  that 
the  tenant  had  not  enclosed  on  a  certain  day  is  good.   5  Litt.  322. 


198  EJECTMENT. 


VERDICT    AND^JUDOMENT FOR    DEFENDANT. 

For  the  Forms  of  Judgments  upon  Nonsuit,  &c.  See,  Judgments 
in  Assumpsit,  ante.  67. 

FOR    DEFENDANT    ON    PLEA    OF    NOT    GUILTY. 

The  Lessee  of  A.  B.  S 

vs.  > 

John  Smith.  ) 

This  day  came  the  parties  by  their 
attorneys,  and  thereupon  came  a  jury,  to  wit,  E.  F.  &c.  w\\o  being 
empannelled,  and  sworn  the  truth  to  speak  upon  the  issue  joined 
between  the  parties,  upon  their  oaths  do  say,  that  the  said  John 
Smith  is  not  guilty  of  the  trespass  or  ejectment  laid  to  his  charge 
in  manner  and  form  as  the  said  John  Doe  hath  complained  against 
him:  Therefore,  it  is  considered  that  the  said  John  Smith  go 
hence  without  day,  and  recover  of  the  said  A.  B.  [^  the  lessor 
of  the  plaintiff^  his  costs  herein^expended  taxed  to dollars. 


EJECTMENT.  199 


OCCUPYING    CLAIMANTS. 

In  all  cases  where  any  occupying  claimant  being  in  quiet  pos- 
session of  any  lands  or  tenements,  for  which  such  person  can  show 
a  plain  and  connected  title,  in  law  or  equity,  derived  from  the  re- 
cords of  some  public  office ;  or  being  in  quiet  possession  of,  and 
holding  the  same  by  deed,  devise,  descent,  contract,  bond  or  agree- 
ment, from  any  person  claiming  title  as  aforesaid,  derived  from 
the  records  of  some  public  office,  or  by  deed  duly  authenticated 
and  recorded ;  or  being  in  quiet  possession  of,  and  holding  the  same 
under  sale  on  execution,  against  any  person  claiming  title  as  afore- 
said, derived  from  the  records  of  some  public  office,  or  by  deed 
duly  authenticated  and  recorded;  or  being  in  possession  of,  and 
holding  any  land  under  any  sale  for  taxes,  authorized  by  the  laws 
of  this  state,  or  the  laws  of  the  territory  northwest  of  the  river 
Ohio;  or  any  person  in  quiet  possession  of  any  land,  claiming  title 
thereto,  and  holding  the  same  under  a  sale  and  conveyance  made 
by  executors,  administrators  or  guardians,  or  by  any  other  person 
or  persons,  in  pursuance  of  any  order  of  Court  or  decree  in  Chan- 
cery, where  lands  are,  or  have  been  directed  to  be  sold ;  and  the 
purchaser  has  obtained  title  to  and  possession  of  the  same,  without 
any  fraud  or  collusion  on  his  part;  cannot  be  evicted,  by  any  per- 
son who  shall  set  up  and  establish  an  adverse  and  better  title,  until 
the  occupying  claimant,  or  his  heirs,  shall  bo  paid  the  value  of  all 
lasting  and  valuable  improvements  made  on  the  land,  by  the  occupy- 
ing claimant,  or  by  the  person  under  whom  he  claims,  previous  to 
receiving  actual  notice,  by  the  commencement  of  suit  on  such  ad- 
verse claim,  by  which  such  eviction  may  be  eflcctcd,  unless  the 
occupying  claimant  shall  refuse  to  pay  the  successful  claimant,  the 
value  of  the  land,  without  the  improvements.  Slat.  vol.  29,  p.  261. 
§  1,2. 

Upon  the  rendition  of  iinal  judgmcnl  in  favor  of  \\\v  plainlitV 
in  ejectment,  either  party  may  apply  to  the  Court  for  relief  under 
this  statute.  The  journal  entry,  in  general,  is  made  immediately 
after  the  judgment,  and  may  be  in  this  form:  "And  thereupon  the 


200  EJECTMENT. 


OCCUPYING    CLAIMANTS. 


said  A.  B.  or  C.  D.  {a)  by  Mr.  O.  iiis  counsel  made  application 
to  the  Court,  for  the  valuation  of  improvements  and  assessment  of 
damages  under  the  statute,  for  the  relief  of  occupying  claimants, 
and  the  Court  having  considered  of  the  same,  are  of  opinion  that, 
he  is  entitled  thereto :  Whereupon  it  is  ordered  that  further  pro- 
ceedings may  be  had  in  the  premises  agreeably  to  the  provisions 
of  said  statute." 

The  application  kaving  been  allowed  by  the  Court,  the  Sheriif 
and  Clerk,  when  requested  by  either  party,  are  required  by  the 
statute,  to  meet  and  draw  a  jury  of  twelve  men,  in  the  same  man- 
ner that  juries  in  other  cases  are  drawn;  and  thereupon  the  Clerk 
issues  an  order  to  the  Sheriff,  under  the  seal  of  the  Court,  setting 
forth  the  names  of  the  jury,  and  the  duties  to  be  performed  by 
them.  These  duties  consist,' in  making  an  assessment  of  the  value 
of  all  lasting  and  valuable  improvements  made  on  the  land,  by  the 
occupying  claimant,  or  by  the  person  or  persons  under  whom  he 
claims,  previous  to  receiving  actual  notice,  by  the  commencment  of 
the  action  of  ejectment;  and  also  of  the  damages,which  the  land  may 
have  sustained  by  waste,  together  with  the  net  annual  value  of  the 
rents  and  profits  which  the  occupying  claimant  may  have  received, 
after  notice  of  plaintiff's  title,  by  the  service  of  the  declaration, 
and  deduct  the  amount  thereof  from  the  estimated  value  of  such 
improvements.  The  jury  also  must  assess  the  value  of  the  land, 
without  regard  to  any  improvements,  or  damages  sustained  by 
waste;  and  the  report,  signed  and  sealed,  must  be  deposited  with 
the  Clerk,  before  the  first  day  of  the  term  next  after  the  date  of  the 
order.  Stat,  vol  20, 7^.  262.  §  1,  3,4,  G.  The  form  of  the  order 
to  the  Sheriff  may  be  thus : 


[a).  It  should  alwiys  appear  by  whom  the  ai^plication  is  made;  for  the 
proceedings  under  this  statute,  are  separate  and  distinct,  from  the  proceed- 
ings in  the  action  of  ejectment,  and  the  party  prevailing  is  entitled  to  costs. 
When  the  application  is  made  hy  the  defendant,  and  a  judgment  is  given  in 
his  favor,  the  Cuurt.will  order  the  lessor  of  the  plaintitf  to  pay  the  costs  of 
the  proceeding.    1  Ohio  Rej^.   157.  Ohio  Conds.  74. 


EJECTMENT.  301 


occupying  claimants. 

Oruer  to  the  sheriff  for  valuation  of  improvements  Sx. 

The  State  of  Ohio County,  ss. 

To  the  Sheriff  of  said  County:  Greetino, 

Whereas  on  the  day  of A.  D. the  lessor  of 

A.  B.  recovered  a  judgment  against  C.  D.  in  a  certain  action  of 
ejectment  lately  pending  in  our  Court  of  Common  Pleas,  within 

and  for  the  said  County  of for  his  term  yet  to  come  in  the 

following  lands  and  tenements,  to  wit,  \_Here  describe  the  lands  as 
in  the  declaration  in  ejectment,  or  as  in  the  judgment,  when  the 
lands  are  described  in  the  judgmeiit,']  and  whereas  also,  upon  the 
rendition  of  said  judgment,  our  said  Court  of  Common  Pleas,  on 
application  for  that  purpose,  granted  to  the  said  C.  D.  the  benefits 
of  the  statute  for  the  relief  of  occupying  claimants:  We  therefore 
command  you,  that  without  delay,  by  the  oaths  of  E.  F-  &c.  (a). 
[^Names  of  Jurors']  and  upon  actual  view  of  the  premises,  you 
cause  to  be  made  a  just  and  true  assessment  of  the  value  of  all 
lasting  and  valuable  improvements  made  upon  the  lands  and  tene- 
ments aforesaid,  by  the  said  C.  D.  or  by  any  person  or  persons 

under  whom  the  said  C.  D.  holds  the  same,  previous  to  the 

day  of  — —  A.  D. \_Date  of  the  service  of  the  declaration  in 

ejectment'] :  and  also,  in  like  manner,  you  cause  to  be  made  a  just 
and  true  assessment,  of  the  damages,  if  any,  which  the  said  lands 
and  tenements  may  have  sustained  by  waste,  together  with  the  net 
annual  value  of  the  rents  and  profits  which  the  said  C.  D.  may 

have  received  from  the  same,  from  and  after  the day  of 

\_Date  of  the  service  of  the  declaration  in  cjectjncnt]  deducting  the 
amount  of  such  rents  and  profits  from  the  estimated  value  of  the 
lasting  and  valuable  improvements  aforesaid  ;  and  also  that  in  like 
manner,  you  cause  to  be  made,  a  just  and  true  assessment,  of  the 


(a)  The  oath  may  be  administered  by  any  competent    authority.     Stat- 
vol.   29,  p.  262.  }  4. 

Aa 


202  EJECTMENT. 


OCCUPYING    CLAIMANTS. 

value  of  the  said  lands  and  tenements,  on  the  day  of 

A.  D.  l^Date  of  the  final  judgment  in  eject?neni]  exclusive  of  the 
improvements  made  thereon,  and  of  the  damages  sustained  by 
waste  as  aforesaid:  and  of  this  writ  make  legal  service  and  due 
return. 

WiTNKss  ;  T.  T.  President  Judge  of  our  said  Court  of  Common 
Pleas,  this day  of  — -^^^ —  A.  D. . 

Attest 

F.  C.   Glerk. 

It  is  the  duty  of  the  Sheriff,  to  notify  the  jurors  named  in  the 
writ,  who,  upon  actual  view  of  the  premises,  and  having  been  af- 
firmed or  sworn,  proceed  to  make  their  report. 

This  report  is  sometimes  delivered  to  the  Clerk,  by  one  of  the 
jurors,  but  the  better  practice  is  to  attach  it  to  the  writ.  The  re- 
turn of  the  Sheriff  and  the  report  of  the  jury  may  be  in  this  form : 


Form  of  Sheriff's  return  and  report  of  jury. 

The  execution  of  this  writ  appears  in  a  certain  schedule  hereto 
annexed. 

S.  W.  Sheriff  of County. 

Dated,  ^. 


EJECTMENT.  203 


OCCUPYING  CLAIMANTS. 

We,  the  jury  named  in  the  within  writ,  Iiaving  been  first  duly 
sworn,  upon  actual  view  of  the  premises  in  the  within  writ  des- 
cribed, do  make  the  assessment  therein  commanded,  as  follows,  to 
wit: 

We  find  that  the  said  C,  D.  previous  to  the 

day  of A.  D. [Date  of 

the  service  of  the  declaration  in  eject- 
mentl  had  erected  upon  said  premises 
one  brick  house,  which  with  the  fixtures, 
we  estimate  at         -         -         -         -       $1200  00 

Also  one  barn,  estimated  by  us  at         -  400  00 

Also  one  log  cabin         -         -         -         -  60  00 

We  also  find  that,  previous  to  the  same 
date,  the  said  C.  D.  had  cleared  and 
fenced  seventy  acres  of  the  said  land, 
the  value  of  wliich  improvement,  we 
estimate  at  ...        -  450  00 

He  had  also  planted  one  orchard  contain- 
ing two  hundred  apple  trees,  estimated 
by  us  at 300  00 

Making  the  whole  amount  of  lasting  and 

valuable   improvements  upon  said  pre-  : 

mises $2410  00 

We  further  find  that  said  lands  have  sus- 
tained waste,  by  cutting  down  of  val- 
uable timber,  to  the  amount  of    -  $300  00 

We  also  estimate  the  net  annual  value  of 
the  rents  and  profits  of  said  lands,  since 

the day  of A.  D.  [Date   of 

the  service  of  the  cleclaratiou  in  eject- 
ment'] at  250  Dollars,  which  to  this  date, 
{Two  years  and  six  months)  amounts 
to 625  00 


$925  0(\ 


Excess  in  favor  of  the  occupying  claimant  $1485  00 


204  EJECTMENT. 


OCCUPYING  CLAIMANTS. 


And  we  do  also  estimate  the  value  of  said  lands  on  ihe day 

of A.  D. [Date  of  final  judgment  in  ejectment]  at  6500 

Dollars,  exclusive  of  the  improvements,  and  damages  sustained  by- 
waste  as  aforesaid. 

In  testimony  whereof,  we  hereto  put  our  hands  and  seals  this 
day  of A.  D. 


E.  F.  &c.  [seal.] 


The  Court,  on  application  of  either  party,  and  upon  good  cause 
shown,  will  set  aside  the  proceedings  of  the  sheriff  and  the  report 
of  the  jury,  at  the  term  to  which  the  proceedings  are  returned, 
and  order  a  new  valuation  to  be  made.  Stat.  vol.  2Q,p.  263,  §  6. 

If  the  jury  report  a  balance  due  to  the  plaintiff  in  ejectment,  the 
Court  will  render  judgment  for  such  balance,  without  pleadings, 
and  issue  execution  thereon  as  in  other  cases.  Ih.  §  7.  The  form 
of  the  judgment  may  be  thus: 


Judgment    for    Plaintiff    in    Ejectment    for    balance 
FOUND  BY  Jury. 


Application  to  assess  damages,  &c.  under  occupy- 
ing claimant  law. 


On  motion  to  the  Court,  by  Mr.  O.  counsel  for  the  said  A.  B. 
and  upon  producing  a  report  of  the  jury  herein  appointed  to  assess 
damages,  &c.  under  the  Statute  for  the  relief  of  occupying  claim- 
ants, and  it  appearing  by  said  report  that  a  balance  of dollars 

is  due  to  the  said  A.  B.  upon  such  assessment.  It  is  therefore  con- 
sidered that  the  said  A.  B.  recover  of  the  said  C.  D.  the  said  sum  of 
dollars  his  damages  aforesaid  assessed;  and  also  his  costs  here- 
in expended,  taxed  to dollars. 


EJECTMENT.  205 


OCCUPYING   CLAI>IANTS. 


If  the  jury  report  a  balance  in  favor  of  the  occupying  claim- 
ant, the  plaintiff  in  ejectment  may  elect,  either  to  pay  such  balance, 
within  a  reasonable  time  to  be  fixed  by  the  Court,  and  take  pos- 
session of  the  premises  ;  or  he  may  tender  a  deed  of  the  land  to 
the  occupying  claimant,  and  demand  the  assessed  value  of  the 
land,  exclusive  of  the  improvements;  and  if  the  occupying  claim- 
ant neglect  to  pay  such  assessed  value,  within  a  reasonable  time 
to  be  fixed  by  the  Court,  the  plaintiff  in  ejectment  may  sue  out  a 
writ  of  possession.  Stat,  vol  29,  p.  263,  §  8.  He  may  also  have 
a  writ  of  possession  upon  paying  the  occupying  claimant,  the 
balance  reported  due  to  him,  by  the  jury.  Ih.  §  9.  Or,  if  the 
occupying  claimant  neglect  or  refuse  to  pay  the  assessed  value  of 
the  lands,  within  the  time  limited  by  the  Court,  he  having  tendered 
a  general  warranty  deed  to  the  occupying  claimant.  Ih.  §  10. 
When  the  plaintiff"  in  ejectment  elects  to  surrender  the  land  and 
receive  the  assessed  value  thereof,  and  the  occupying  claimant 
pays  such  assessed  value  into  Court,  and  the  plaintiff  neglects  or 
refuses  to  convey  the  premises,  the  occupying  claimant  may  file  a 
Bill  in  Chancery,  in  the  Court  which  rendered  the  judgment  in 
ejectment,  to  compel  such  conveyance.    Ih.  §  11.  {a). 


[a)  Tliis  statute  docs  not  liar  the  action  of  trespass  for  mesne  profits 
which  may  have  accrued  anterior  to  the  service  of  the  tieclara'.ion  in  eject- 
ment.   See,  trespass,  ante.  158,  n.  (a). 


206  ERROR. 


EllROK. 


Nature  of  Remedy  and  when  it  lies. 

Final  Judgments  in  the  Courts  of  Common  Pleas,  may  be  ex- 
amined, and  reversed  or  affirmed  in  the  Supreme  Court,  holden 
in  the  same  County,  upon  writ  of  error.  Stat.  vol.  29,  p.  77,  §  103. 

At  Common  Law  there  are  two  kinds  of  writs  of  error,  the  one 
coram  nobis,  and  the  other  coram  vohis.  The  writ  coram  nobis, 
may  be  brought  in  the  sa?ne  Court  where  the  judgment  was  ren- 
dered, but  lies  only  for  some  defect  in  the  execution  of  the  process, 
or  through  some  default  of  the  Clerk,  or  for  some  error  i7i  fact. 
1  Roll.  Abg.  746.  Cro.  Eliz.  106.  2  Saund.  101.  n.  {a),  "^he 
writ  coram  vobi'^,  lies  for  error  in  the  judgment  itself,  and  must 
be  brought  before  another  Court  than  that  in  which  the  judgment 
was  rendered.  2  Bac.  M)g.  215.  2  Saund.  101, 7i.  (a).  The  latter 
alone  is  used  in  the  State  of  Ohio;  and  it  is  prosecuted,  in  general, 
upon  the  principles  of  the  Common  Law. 

No  writ  of  error  can  be  brought  but  on  a  judgment,  or  an  award 
in  the  nature  of  a  judgment.  2  Bac.  ..'Ibg.  452.  Co.  Litt.  288,  b. 
If  a  party  be  non-suited,  and  a  judgment  be  given  against  him  for 
costs,  error  lies.  2  Johns.  Rep.  9.  S.  P.  6  Johns.  Rep.  110.  1  Id. 
373.  Ohio  Stat.  vol.  29,  p.  75,  §  95.  Also,  on  an  award  for  refus- 
ing to  discharge  a  prisoner  on  habeas  corpus.  6  Johns.  Rep.  337. 
So,  on  motion  for  a  new  trial,  by  reason  of  any  supposed  misdi- 
rection of  the  Court  to  the  jury,  or  by  reason  that  the  verdict  may 
be  supposed  to  be  against  law.  Ohio  Stat.  vol.  29,  p.  75,  §  96. 
Error  does  not  lie  on  an  arrest  of  judgment,  in  N.  York.  2  Johns. 
Rep.  247.  It  lies  for  error  in  fact,  and  the  Supreme  Court  can 
award  a  venire  to  try  the  fact.  14  Johns.  Rep.  417.  It  lies  also 
where  the  Court  of  Common  Pleas  refuse  to  non-suit  a  plaintiff, 
on  motion  of  the  defendant,  where  the  evidence  entirely  fails  to 
support  the  plantiff's  case.  19  Johns.  Rep.  154.  Though  the 
judgment  be  defective,  yet  if  it  be  final,  and  one  on  which  execu- 
tion can  issue,  error  lies.    3  DalL  401.     The  judgment  must  be 


ERROR.  207 

final.  4  Dall.  22.  The  refusal  of"  the  Court  below  to  grant  a  new 
trial,  cannot  be  assigned  for  error.  5  Cranch.  11.  187.  4  Wlieat. 
213.  7  Wheat.  248.  See,  Ohio  Statute,  ut  supra.  Nor  that  the 
Court  below  refused  to  reinstate  the  cause  after  judgment  of  non- 
suit. 5  Cranch.  280.  7  Cranch.  152.  Or,  refused  to  allow  a  plea 
to  be  amended,  or  a  new  plea  to  be  filed,  or  to  grant  a  new  trial,  or 
to  continue  a  cause.  6  Carnch  20G.  9  Wheat.  576.  1 1  Wheat. 
280.  I  Mason  1^2.  Nor,  on  a  judgment  of  non-suit.  4:  Wheat.  1^. 
Or,  refusing  to  set  aside  a  verdict.  3  Wash.  C.  C.  Rep.  443.  Nor, 
generally,  upon  matters  of  practice  in  the  inferior  Court.  3  Pet. 
445.  Nor,  upon  the  minutes  of  the  daily  proceedings  of  the 
Court.     1  Harr.  208.    1  Ohio  Rep.  268.    Ohio  Conds.  129. 


Of  the  time  and  manner  of  bringing  a  writ  of  error. 


Writs  of  Error  cannot  be  brought,  but  within  five  years  after 
the  rendition  of  the  judgment  complained  of;  or  in  case  the  person 
entitled  to  such  writ  be  an  infant,  feme  covert,  non  compos  mentis, 
or  imprisoned,  then  within  five  years  exclusive  of  the  time  of  such 
disability.  Stat.  vol.  29,  p.  77,  §  104.  When  one  of  the  plaintiff's 
in  a  writ  of  error,  is  within  the  saving  clause  of  the  statute,  the 
case  is  saved  to  all.  3  Ohio  Rep.  49.   Ohio  Conds.  464. 

The  writ  may  be  allowed  by  the  Court  in  term,  or  by  a  single 
Judge  in  vacation,  upon  good  cause  shown.  Stat.  vol.  29,  p.  56, 
§  3.  It  is  not  grantable,  as  in  England,  ex  dchito  justicoe,  but 
only  upon  cause  shown.  Ibid. 

The  party  applying  for  a  writ  of  error  must  obtain  a  certified 
transcript  of  the  record  of  the  Court  of  Common  Pleas,  and  after 
assigning  errors  upon  it,  present  the  same  to  one  of  the  Judges 
of  the  Supreme  Court  in  vacation,  or  to  the  Court  in  term  time, 
for  an  allowance  of  the  writ.  The  allowance,  which  is  generally 
made  by  a  single  Judge,  as  well  in  term  time,  as  in  vacation,  is 
endorsed  upon  the  transcript  thus :  "  Let  a  writ  of  error  be  issued, 
returnable  at  next  term.  T.  S.  Judge  Sup.  Court."  The  tran- 
script is  then  filed  with  the  Clerk  of  the  Supreme  Conrf,  who 
thereupon  issues  the  writ  as  follows : 


208  ERROIi. 


Form  of  Writ  of  Error. 


The  State  of  Ohio, County,  ss. 

To  the  Judges  of  the  Court  of  Common  Pleas  within  and 
for  said  County:    Greeting. 

Because  in  the  record  and  proceedings,  and  also  in  the  rendition 
of  Judgment,  in  a  certain  action  of  Debt,  which  was  lately  in  our 
said  Court  before  you,  wherein  A.  B.  was  plaintiff  and  C.  D.  was 
defendant,  error  has  intervened,  as  it  is  said,  to  the  damage  of  the 
said  CD.  and  we  being  willing  that  such  error,  if  any  there  be, 
should  be  corrected,  and  full  and  speedy  justice  done  to  the  parties 
aforesaid  in  this  behalf,  do  command  you,  that  if  judgment  be  there- 
upon given,  then  without  delay,  you  send  to  us  distinctly  and  openly 
under  the  seal  of  your  Court,  an  authenticated  transcript  of  the 
record  and  proceedings  aforesaid,  with  all  things  concerning  the 
same,  and  this  writ ;  so  that,  the  same  being  inspected,  we  may,  at 
the  next  term  of  our  Supreme  Court,  to  be  holden  within  and  for 

the  said  County  of on  the day  of next,  cause 

further  to  be  done  thereupon,  what  of  right  and  according  to  the 
laws  of  the  land  ought  to  be  done. 

Wit?;ess  :  T.  T.  Cliief  Judge  of  the  Supreme  Court  of  the 
State  of  Oliio,  tliis day  of A.  D.  • . 

Attest. 

R.  C.  Clerk  S.  C. Counti/. 


This  writ  is  taken  to  the  Clerk  of  the  Court  of  Common  Pleas, 
who  makes  out  another  complete  transcript  of  the  record,  and 
certifies  the  same  under  the  seal  of  the  Court.  To  this  transcript 
the  writ  is  prefixed,  after  being  endorsed  as  follows :  "  An  au- 
thenticated transcript  of  the  record  and  proceedings  within  men- 


ERROR.  ao» 

tioned,  with  all  things  concerning  the  same,  is  herewith  returned 
to  the  said  Supreme  Coui-t,  in  a  certain  record  to  this  writ  annexed, 
as  within  commanded." 

Attest. 

G.  R.  Chrk  of Common  Pleas. 

The  transcript,  and  writ  thus  endorsed,  is  then  delivered  to  the 
plaintiff  in  error,  who  thereupon  acsigns  errors  anew,  and  files  the 
same  with  the  Clerk  of  the  Supreme  Court,  {a). 


ASSIGNMSUT   OP   EnSOKS. 


The  assignment  of  errors  is  in  the  place  of  a  declaration,  and 
may  be  assigned  in  any  part  of  the  record.  Vin.  Ahg.  {A.  a.)  4. 
2  Bac.  Jlhg.  485.  2  Saund.  101,  w.  (a).  An  assignment,  quod  in 
omnibus  erratum  est,  is  not  good,  for  the  Court  is  not  bound  to 
enquire  of  errors,  if  the  party  does  not  show  them.  2  Bac.  Ahg. 
486.  The  plaintiff  cannot  assign  error  in  fact  and  error  in  law 
together;  for  they  are  distinct  things,  and  require  different  trials ; 
viz.  Matters  of  fact  by  a  jury;  and  matters  of  law,  by  the  judge 
before  whom  the  record  is  removed.  Yeh.  58.  2  Bac.  Mg.  487. 
But  if  errors  in  law  and  errors  in  fact  are  assigned  together,  and 
the  defendant  in  error  pleads,  in  nullo  est  erratum;  this  is  a  confes- 
sion of  the  error  in  fact,  and  the  judgment  must  be  reversed ;  for  he 
should  have  demurred  for  the  duplicity.  Salk.  2G8.  Ld.  Raym. 
883, 1005.    2  Bac.  Ahg.  488.    9  Johns.  Rep.  159.    15  Johns.  Rep. 


(rt)  This  is  tne  regnJar  mode  of  proceeding;  but  a  general  practice  has 
grown  tip  under  the  llili  rule  of  the  Supreme  Court,  {Dec.  Term,  1823.  .5 
Ohio  Rep.  6.  Ohi')  Conds.  <}.)  of  altucliiiig  the  writ  of  error  to  tlie  transcript 
upon  which  the  writ  was  originally  allowed,  hnd  which  is  already  on  file 
with  the  Clerk  of  the  Hupreine  Court.  In  Buch  cases  the  writ  is  not  sent 
down  to  the  Court  of  C  tiimon  Pleas,  but  the  original  transcript  is  made 
the  foundation  of  all  subsequent  proceedings,  in  the  same  manner,  as  if  a 
second  transcript  had  been  sent  up  in  obedience  to  the  writ.  This  prac- 
tice renders  the  complete  record  informal,  but  it  is  very  convenient,  and 
much  less  expensive  than  the  other  mode  of  proceeding;  and  it  may  dow  bo 
considered  the  settled  practice  of  the  Supreme  Court. 
Bb 


•!•  ERROR. 

159.  15  Johns.  Rep,  87.  Lev.  76.  But  if  an  error  in  fact  be  ill 
assigned,  in  nullo  est  erratum,  is  no  confession  of  it.  Cro.  Car. 
421.  2  Bac.  Ahg.  488.  When  error  in  fact  is  assigned,  the  plain- 
tiffmust  conclude  with  an  avermeni,  in  order  to  give  an  opportunity 
of  trying  the  fact  by  the  country,  if  the  defendant  in  error  chooses 
it.    1  Burr.  412.    2  S.^mno'.  101,  n.  (a). 

Nothing  can  be  assigned  for  error  which  contradicts  the  record. 
1  Sir.  684.  2  Ld.  Raym.  1411.  1  Wils.  85.  Or,  that  which  is 
aided  by  appearance,  or  by  not  being  taken  advantage  of  in  due 
time.    2  Bac.  Ahg.  230.    IX.  Petersd.    Ahg.  52. 

As  a  general  rule,  a  party  cannot  assign  that  for  error  which 
makes  to  his  own  advantage.  8  Co.  39.  2  Bac.  Ahg.  490.  5  Pick. 
213.  11  Mass.  279.  9  Mass.  532.  2  Ohio  Rep.  343.  Ohio  Conds. 
386  This  rule  does  not  apply  to  errors  of  the  Court  8  Co.  359. 
1  Gallis.  26.  2  C ranch.  126.  If  a  plaintiff  assign  an  error  in 
fact,  and  fail  to  prove  it,  he  cannot  assign  another  error  in  fact. 
7  Pick.  14.5.  A  man  may  assign  as  many  errors  in  law  as  he 
pleases,  but  he  can  assign  only  one  error  in  fact.  F.  N.  B.  20. 
(E.)  5  Dane^s  ,fihg.  73.  When  a  thing  in  the  record  is  assigned 
for  error,  which  is  not  error,  yet  the  Court  will  view  the  record, 
to  see  if  there  be  any  other  in  it,  and  if  there  be,  will  reverse  the 
judgment;  because  no  error  should  be  left  on  the  record.  For  the 
same  reason,  if  matter  of  fact  is  pleaded  in  bar  of  a  writ  of  error, 
and  on  issue  joined,  it  is  found  for  the  defendant  in  error,  yet  the 
(/ourt  may  examine  the  judgment,  and  if  error  is  found  in  it,  may 
reverse  it.  Vin  Ahg.  Error,  (E.  c  )  1,2.  Story  PL  hy  Ol.  371. 
So,  if  there  be  any  matter  in  the  record  to  affirm  the  judgment, 
which  is  not  pleaded,  the  Court  may  take  advantage  of  it  to  sus- 
tain the  judgment.    Ihid, 


Form  of  Assignment  op  Errors. 

And  the  said  C.  D.  now  comes  and  says,  that  in  the  record 

and  proceedings  aforesaid  there  is  error  in  this,  to  wit : 

I .  That  the  declaration  aforesaid,  and  the  matters  therein 
contained,  are  not  sufficient  in  law  to  maintain  the  said  action. 

II.  That,  &o. 


ERROR.  Jll 

III.  That  said  judgment  was  given  in  favor  of  the  said  A.  B. 
when  by  the  laws  of  the  land  it  ought  to  have  been  given  in  favor 
of  the  said  (\  D. 

Wherefore,  the  said  C.  D.  prays  that  a  citation  and  supersedeas 
[or,  if  no  bond  is  given,  a  citation  onfy,']  may  issue,  and  that  the 
said  judgment  may  be  reversed  and  that  he  may  be  restored  to 
all  things  which  he  has  lost  by  reason  thereof. 

By  S.  his  Jitty. 


CiTATio.\,  Notice,  axd  Supersedeas. 


A  citation,  signed  by  the  Clerk  of  the  Supreme  Court,  must  be 
served  upon  the  adverse  party,  or  his  attorney,  and  notice  given, 
at  least  ten  days  before  the  commencement  of  the  term,  to  which 
the  writ  of  error  is  returnable.    Stat.  vol.  29,  p.  77,  §  103. 


Form  of  Citation  ajjd  Notice. 

The  State  of  Ohio County,  ss. 

To  the  SherifTof  said  County :  Greeting. 

We  command  you  to  give  notice  to  A.  B.  that  C,  D.  has 
obtained  an  allowance  of  a  writ  of  error  upon  a  judi-mpnt  rendered 
in  a  certain  action  of  Debt,  lately  pending  bcf  )re  the  Judges  of 

the  Court  of  Common  Pleas  in  and  for  the  said  County  of 

and  wherein  the  said  A.  B.  was  plaintiff  and  the  said  C.  D.  was 
defendant :  and  also  to  cite  the  said  A.  B.  to  appear  before  the 
Judges  of  the  Supreme  Court,  at  the  Court  House  in  said  County, 
on  the  first  day  of  the  next  term  of  the  said  Supreme  Court,  to 
show  cause,  if  any  there  be,  why  the  said  judgment  should  not 
be  reversed,  and  why  speedy  justice  should  not  be  done  to  the 
parties in  that  behalf:  And  of  this  writ  make  legal  service  and 
Wue  r»^t»rn. 


212  ERROR. 

Witness  :  R.  R.  Chief  Judge  of  the  Supreme  Court  of  Ohio, 
this  — —  day  of  ■ A.  D. 

Attest. 

R.  C.  Clerk  Cup.  Court County, 

A  copy  of  this  writ  is  served  by  the  Sheriff,  upon  the  defend- 
ant in  error,  or  his  attorney,  in  the  same  manner  as  ether  mesne 
process,  and  is  returned  on  the  first  day  of  the  next  term. 

In  England,  a  writ  of  error  sued  out  after  final  judgment,  and 
before  execution  executed,  is  a  supersedeas  of  execution,  from  the 
time  of  its  allowance,  and  not  from  the  time  of  the  service  of  the 
allowance.  1  Salk.  321.  1  Burr.  340.  1  B.  SfP.  478.  1  T.  R.  279. 
The  service  of  the  allowance  is  only  material  to  bring  the  attorney 
into  contempt  fof  proceeding  to  sue  out  execution  afterwards.  1 
r.  R.  280.  Willes.  275.  2  Saund.  101,  n.  (b).  But  under  our 
Statute,  a  writ  of  error  does  not  operate  as  a  supersedeas,  unless 
the  Clerk  before  signing  the  citation,  takes  a  bond  from  the  appli- 
cant to  the  adverse  party,  with  one  or  more  good  and  sufficient 
securities,  in  double  tie  amount  of  the  judgment,  conditioned  for 
the  payment  of  the  condemnation  money  and  costs,  in  case  the 
judgment  of  the  Court  below  should  be  affirmed,  in  whole  or  in 
part.  Vol.  29,  p.  77,  §  104.  Hence  it  would  seem,  that  the  writ 
can  at  most  operate,  as  a  supersedeas,  only  from  the  execution  of 
the  bond. 


Form  of  Bond. 


Know  all  men  by  these  presents,  that  we,  C.  D.  E.  F.  &c.  of 
&c.  are  held  and  firmly  bound  unto  A.  B.  of  &c.  in  the  penal  sum 
of——  dollars,  [double  the  amount  of  the  judgmentl  to  the  pay- 
ment of  which  well  and  truly  to  be  made  we  do  by  these  presents 
jointly  and  severally  bind  ourselves,  our  heirs,  executors,  and  ad- 
ministrators ;  sealed  with  our  seals,  and  dated  tliis day  of 

A.D. — 

The  condition  of  the  above  obligation  is  such,  that  whereas  the 
•aid  C.  D.  has  obtained  an  allowance  of  a  writ  of  error  upon  a 


ERROR.  213 

certain  judgment  rendered  in  the  Court  of  Common  Pleas  within 

and  for  said  County  of ,  at  the term  thereof,  A.  D. 

in  favor  of  the  said  A.  B.,  and  against  the  said  C.  D.,  for  the 

sum  of dollars,  damages,  and  also  for  dollars,  costs : 

Now,  if  the  said  C.  D.  shall  pay  the  condemnation  money  and 
costs,  in  case  the  said  judgment  of  the  said  Court  of  Common  Fleas 
shall  be  affirmed  by  the  Supreme  Court,  m  v.hole  or  in  part,  then 
the  above  obligation  shall  be  void ;  otherwise,  in  full  force  in  law. 

Taken  by  me,  this day  of A.  D. . 

R.  B.  Clerk  Sup,  Court County. 

C.  D.  [seal.] 

E.  F.  [seal.] 

It  is  well  settled,  that  a  bond,  duly  executed  by  the  securities, 
is  sufficient,  though  not  actually  signed  by  the  plaintiff  in  error. 


At  common  law,  it  was  unnecessary  in  many  cases,  to  sue  out 
a  writ  of  supersedeas,  as  the  allowance  of  the  writ  of  error,  was 
of  itself,  in  contemplation  of  law,  a  supersedeas.  1  T.  R.  279.  2 
Day  370.  The  practice  under  our  statute,  has  not  been  uniform, 
but  the  better  opinion  seems  to  be,  that  the  writ  of  supersedeas 
should  actually  issue  in  all  cases,  to  prevent  execution.  See,  5 
Dane's  Abg.  71,  The  Supersedeas,  Citation,  and  Notice,  may  all 
be  embraced  in  one  writ,  thus: 


Form  oi'  Supersedeas,  Citation,  and  Notice. 

The  State  of  Chio, County,  ss. 

To  the  Sheriff  of  said  County:  Greeting. 

We  command  you,  that  you  forbear  all  further  proceedings 
upon  a  judgment  rendered  in  a  certain  action  of  Debt,  in  our  Court 
of  Common  Pleas,  in  and  for  the  said  County  of ,  at  the 


«14  ERROR. 

term  thereof,  A,  D. in  favor  of  A.  B.  and  against  C.  D.  for 

the  sum  of dollars,  and  which  said  judgment  for  causes  of 

error  to  be  corrected,  on  the  complaint  of  t!:e  said  C.  D.  we  have 
caused  to  be  brought  into  our  Supreme  Court  by  our  writ  of  error: 
And  also  that  you  give  notice  to  the  said  A.  B  that  a  writ  of  error 
has  been  allowed  upon  said  judgment :  And  also  that  you  cite  the 
said  A,  B.  to  appear  before  the  Judges  of  our  Supreme  Court,  at 
the  Court  House  in  said  <  'ounty,  on  the  first  day  of  the  next  term 
of  the  said  Supreme  Court,  to  show  cause,  if  any  there  be,  why 
the  said  judgment  should  not  be  reversed,  and  why  speedy  justice 
should  not  be  done  to  the  parties  in  that  behalf:  And  this  do,  as 
you  will  answer  the  contrary  at  your  peril. 

Witness  :  R.  R.  Chief  Judge  of  the  Supreme  Court  of  Oliio, 
this day A.  D. 


Attest. 


R.  B.  Clerk  Sup.  Court County. 


A  copy  of  this  w^rit  is  served  by  the  Sheriff,  upon  the  defendant 
in  error,  or  his  attorney,  in  the  same  manner  as  other  mesne 
process,  and  is  returned  on  the  first  day  of  the  next  term. 


Demurrer  and  Plea. 

To  an  assignment  of  errors  the  defendant  may  plead  or  demur. 
Pleas  in  error  are  common  or  special.  In  nullum  est  erratum,  is 
the  common  plea,  and  is  in  the  nature  of  a  demurrer.  It  is  fre- 
quently called  the  common  joinder,  and  at  once  refers  the  whole 
matter  in  law,  to  the  judgment  of  the  Court.    2  Saund.  101,  n.  (a.) 


ERROR.  til  a 

Form  of  Com?.ion  Joixdeh. 


A.  B.    ^ 

vs.      >    In  Error. 
CD.) 

And  the  said  A  B.  comes  and 
says,  that  there  is  no  error,  either  in  the  record  and  proceedings 
aforesaid,  or  in  giving  the  judgment  aforesaid :  and  therefore  lie 
prays  that  the  said  judgment  may  be  aSrmcd,  and  that  his  c.fsts 
may  be  adjudged  to  iiim.  &c. 

By  S.  his  AtOj. 


Special  pleas  to  an  assignment  of  errors  contain  matters  in  c^n- 
fession_^and  avoidance,  as  a  i-elease  of  errors,  the  Statute  of  hmita- 
tions,  &c.  Tidd.  Pr.  1120.  2  Saund.  101.  n.  (a),  to  which  the 
plaintiff  may  reply  or  demur,  and  proceed  to  trial,  or  argument. 
Ibid.  When  several  phiintifls  have  judgment  against  them,  and 
alterwards  bring  error  to  reverse  the  judgment,  a  release  by  one 
ol  them  is  a  good  bar.  3  Mod.  135.  2  Cm.  117.  But  when  seve- 
ral arc  sued,  and  judgment  is  recovered  against  them,  a  release 
by  one  of  them  will  be  no  bar  to  a  writ  of  error  by  the  rest.  2 
Cro.   117.  G  Co.  254.  Story  PL  372. 


Suggestion  of  diminution  and  certiorari. 


It  is  a  general  rule,  that  after  the  defendant  has  pleaded,  iii  nuJIo 
est  erratum,  no  diminution  can  be  alleged.  Cro.E/iz.  81.  1  Leon. 
22.  1  Salh.  269.  But  it  is  also  a  general  rule,  that  at  any  time  pend- 
ing a  writ  of  error,  whether  before  or  after  error  assigned,  1  Sir, 
440  or,  after  in  nullo  est  erratum  pleaded,  the  Court  may,  ex  of- 
ficio,ni  their  disQietion,  award  dt.  certiorari.  F.  N.  B.  58  n.  (a).  2 
Ld.  Raym.  1005.  2  Bac.  Abg.  205.  2  Saund.  101.  n.  (a).  5  Danes 
Ahg.  88. 


216  ERROR. 

The  suggestion  of  diminution,  is  the  assigning  of  defects  in  the 
record  returned  from  the  Court  below.  Tidd.  Pr.  1224.  8ih  edit. 
IX.  Peter sd.  Ahg.^l. 

Our  Supreme  Court,  in  general,  require  the  defects  in  the 
record  to  be  specifically  pointed  out  in  writing,  and  will  tlien  ex- 
ercise a  discretion  in  allowinsj  or  refusing  a  certiorari.  The  form 
may  be  thus : 

A.  B.    J 

vs.       >    In  Error. 
C.  D.     ) 

And  the  said  A.  B.  or  C.  D.  suggest  to  the 
Court  here,  that  in  the  transcript  of  the  record  returned  in  this 
case  from  the  Court  of  Common  Pleas,  there  are  certain  defects, 
as  follows,  to  wit,  [Here  set  forth  particularly  the  defects, '\ 
Wherefore  the  said  A.  B.  prays  the  allowance  of  a  certiorari  for 
a  true  transcript,  of  the  record  and  proceedings  in  the  Court  be- 
low, &c. 

By  S.  his  My. 


If  a  certiorari  be  allowed,  the  order  is  entered  upon  the  Journal, 
thus: 


C.  D. 

vs.       \    In  Error. 
A.  B. 

On  motion  to  the  Court,  by  Mr.  O.  counsel  for  the  plaintiff  in 
error,  it  is  ordered  that  a  certiorari  issue  to  the  Court  of  Common 
Pleas  for  a  true  transcript  of  the  record  and  proceedings  in  this 

cause,  in  the  said  Court  of  common  Pleas,  returnable  on and 

thereupon  this  cause  is  continued  at  the  costs  of  the  plaintiff  in 
error. 


ERROR.  217 


Form  of  certiorari  cn  suggestion  of  diminution.  F.  N.  B.  25. 

The  State  of  Ohio County,  ss. 

To  the  Judges  of  the  Court  of  Common  Pleas  within  and  for 
said  County ;  greeting. 

Whereas,  at  the  suit  of  C.  D. 
suggesting  to  us,  that  error  had  intervened,  in  the  record  and  pro- 
ceedings, and  also  in  the  giving  of  judgment,  in  a  certain  action  of 
debt  which  was  lately  pending  in  our  said  Court  before  you,  wherein 
A.  B.  was  plaintiiT  and  the  said  C,  D.  was  deiendant,  we  heretofore 
commanded  you,  that  if  judgment  thereof  was  given,  then  without 
delay  you  should  send  to  us,  under  the  seal  of  your  Court,  distinct- 
ly and  openly,  an  authenticated  transcript  of  the  record  and  pro- 
ceedings aforesaid,  with  all  things  concerning  the  same,  so  that  we 
might  have  them  on  the  first  day  of  the  then  next  term  of  our  Su- 
preme Court,  to  be  holden  within    and  for  the   said  County  of 

And  now  in  behalf  of  the  said  C.  D.  it  is  shown  to  us,  that 

though  you  may  have  sent  to  us  in  our  said  Supreme  Court,  at  the 
time  and  place  aforesaid,  an  authenticated  transcript  of  the  record 
and  proceedings  aforesaid,  in  some  part  thereof;  yet  other  parts 
of  the  same,  and  also  other  things  touching  them,  still  remain  before 
you,  to  be  sent :  Therefore  we  command  you,  that  without  delay 
you  send  to  us,  under  the  seal  of  your  Court,  distinctly  and  openlv, 
a  transcript  of  the  record  and  proceedings  aforesaid,  and  also  of 
all  things  touchnig  them,  which,  as  is  before  said,  remain  before 
you  to  be  sent ;  and  this  writ ;  so  that  we  may,  on  ihc  fust  day  of 
the  next  term  of  our  said  Supreme  Court,  to  be  holden  within  and 

for  the  said  County  of cause  to  be  done,  thereupon  what  of 

right  and  according  to  the  laws  of  the  land  ought  to  be  done. 

Witness:  T.  T.  Chief  Judge  of  the  Supreme  Court  of  the 
State  of  Ohio,  this day  of A.  D. . 


Attest. 


T.  R.  Clerk,  Sup.  Court County. 

Co 


218  ERROR. 


This  writ  is  taken  to  the  Clerk  of  the  Court  of  Common  Pleas, 
who  malvcs  out  a  corrected  transcript  of  the  original  record,  and 
certifies  the  same  under  the  seal  of  the  Court,  and  then  endorses 
the  writ  as  follows  :  {a). 

To  the  Supreme  Court  of  the  State  of  Ohio,  within  and  for  the 
County  of  . 

A  true  transcript  of  the  record  and 
proceedings  within  mentioned,  with  all  things  touching  the  same, 
is  herewith  returned  to  the  said  Supreme  Court,  at  the  day  and 
place  within  mentioned,  in  a  certain  record  to  this  writ  annexed 
as  within  commanded. 

The  answer  of  the  Judges  of  the  Court  of  Common  Pleas 
within  named. 

Attest. 

G.  R.  Clerk, Com.  Pleas. 


The  writ  thus  endorsed,  is  annexed  to  the  transcript,  and  filed 
with  the  Clerk  of  the  Supreme  Court. 

In  England,  a  certiorari  is  often  sent  down  to  certify,  as  to  cer- 
tain sjjecijlc  diminutions  or  defects,  in  the  record  ;  and  this  is  the 
most  advisable,  aud  by  far  the  least  expensive  mode  of  proceeding. 
Lill.  Ent.  556.     The  form  of  such  writ  is  as  follows : 


(a)  The  Clerk  in  miking  out  his  return  to  this  writ,  will  correct  any 
errors  tliat  may  have  occuned  in  the  iormer  copy  of  the  record,  but  he 
cannot  alter  the  original  record,  in  any  respect,  without  the  order  ot  the 
Court  of  which  he  is  Clerk. 


ERROR.  219 


Form  op  certiorari,  on  suggestion  of  specific    diminutions. 

The  State  of  Ohio County,  ss. 

To  the  Judges  of  the  Court  of  Common  Picas  within  and 
for  the  said  County  of G^zeeting. 

Because  in  the  record  and  proceedings,  and  also  in  the  giving 
of  judgment,  in  a  certain  action  o^  debt,  which  was  in  our  said 
Court  before  you  wherein  A.  B.  was  plaintiff,  and  C.  D.  was 
defendant,  error  had  intervened,  as  it  is  said,  to  the  damage  of 
the  said  C  D.  a  transcript  of  the  record  of  which  said  proceed- 
ings and  judgment  before  our  Supreme  Court  in  the  said  Covmty 

of to  correct  the  errors  in  the  same,  we  have  heretofore 

caused  to  be  brought  by  our  writ  of  error :  and  because  the  said 
Supreme  Court,  for  certain  reasons  them  moving,  before  they 
proceed  in  this  behalf  arc  willing  to  be  informed  whether  these 
words,  "///5  ccrlain  note  "  between  this  word,  "6?/"  and  these  words, 
*^under  his  hand"  are  inserted  in  the  said  first  count  of  the  said 
declaration  ;  and  whether  these  words,  "pay  them"  between  these 
words,  ^-promise  to"  and  these  words,  "or  order, "  are  inserted 
in  the  said  second  count  of  the  said  declaration;  and  whether  these 
words,  "next  term, "  between  these  words;  "of  our,  "  and  these 
words,  "to  ansicer, "  are  inserted  in  the  said  writ  of  summons 
[^Proceed  in  like  manner  to  specif/  all  the  defects,  omissions,  mis- 
takes, ^cy.  Therefore  we  C(^mmand  you,  that  the  record  of  the 
said  frst  and  second  counts  of  the  said  declaration,  and  of  the 
said  writ  of  summons,  being  searched,  what  of  said  words  so  as 
aforesaid  omitted  or  inserted  therein,  you  shall  find,  to  the  Supreme 
Court  al'oresaid,  you  without  delay  certify,  together  with  this  writ. 

Witness:  T.  T.  Chief  Judge  of  the  Supreme  Coui't  of  the  State 
of  Ohio,  this day  of A.  D. ^ 


Attest. 


T.  C.  Chrk  Sup.  Court County, 


220  ERROR. 


This  writ  is  delivered  to  the  Clerk  of  the  Court  of  Common 
Pleas  who  searches  the  record,  and  endorses  upon  the  writ  as 
follows : 


To  the  Supreme  Court  of  the  State  of  Ohio  within  and 
for  the  County  of 

We  do  hereby  certify,  that  the  record  of  the  said  first  and 
second  counts  of  the  within  named  declaration,  and  of  the  within 
named  writ  of  sum?nons,  being  searched,  we  do  find,  that  the  words, 
"his  certain  note,"  between  this  word,  "&?/,"  and  these  words,  "mw- 
der  his  seal"  in  the  said  first  count  of  the  said  declaration,  are 
inserted ;  and  that  these  words,  "pay  them,"  between  these  words, 
'^or  order,'^  and  these  words,,  ^^promisc  to"  in  the  said  second 
count  of  the  said  declaration,  are  inserted  ;  and  that  these  words, 
"next  term,"  between  these  words,  "of  our"  and  these  words,  "to 
answer,"  in  the  said  writ  of  summons,  are  wholly  omitted:  as  we 
are  within  commanded. 

The  answer  of  the  Court  of  Common  Pleas  within  named. 
Attest. 

T.  S.  Clerk  of Com.  Pleas. 

The  writ,\;thus' endorsed,  is  filed  with  the  Clerk  of  the  Supreme 
Court ;  and  the  endorsment,  in  all  the  subsequent  proceedings, 
is  considered  as  part  of  the  original  transcript  sent  up  with  the 
writ  of  error,    (a) 


(a)  In  practice,  the  writ  of  certiorari  is  not  frequently  issued,  but  upon 
a  suggestion  of  Diminution,  or  mistake,  the  Clerk  of  the  Common  Pleas, 
by  consent  of  parties,  is  permitted  to  amend  the  original  transcript,  accor- 
ding to  the  truth  of  the  matter,  upon  such  terms  as  will  work  no  injustice. 
In  this,  as  in  other  matters  of  Form,  and  Jeofails,  the  liberality  of  the  pro- 
fession, in  general,  permits,  "that  to  be  considered  as  done,  which  ought  to 
be  don„-" 


ERROR.  221 


Amendment. 


In  England,  and  in  some  of  the  U.  States,  it  is  the  common 
practice  to  amend  the  record,  after  error  brought,  as  a  matter  of 
course,  and  generally,  without  costs.  2  Str.  863,  902  .2  Ld.  Raym, 
1587.  2  Johns.  Rep.  184.  1  Gallis.  257,  261.  But  by  our  Statute, 
vol.  29  p.  77.  §  106.  amendments  are  not  permitted  after  error 
brought. 


222  ERROR. 


Judgments. 

When  a  judgment  is  reversed  in  the  Supreme  Court,  in  whole 
or  in  part,  that  Court  may  proceed  either  to  render  such  judgment 
as  the  Court  of  Common  Pleas  should  have  rendered,  or  remand 
the  cause  to  the  Court  of  Common  Pleas,  by  writ  of  procedendo, 
for  such  judgment ;  and  the  Supreme  Court  cannot  issue  execu- 
tion in  causes  brought  before  them  on  error,  and  in  which  the 
judgment  is  reversed  in  whole  or  in  part,  but  a  special  mandate 
is  sent  down  to  the  Common  Pleas  to  award  execution.  Stat.  vol. 
29,  p.  77,  §  108.  When  the  judgment  is  reversed,  the  plaintiff  in 
error  recovers  his  costs;  when  the  judgment  is  affirmed,  the  de- 
fendant is  entitled  to  his  costs;  and  when  the  judgment  is  reversed 
in  part  and  affirmed  in  part,  the  costs  are  equally  divided  between 
the  parties.    Ih.  §  107. 


Judgment  of  Affirmance. 


In  Error. 


This  cause  came  on 
to  be  heard  on  the  transcript  of  the  record  from  the  Court  of 

Common  Pleas  of County,  and  was  argued  by  counsel ;  on 

consideration  whereof,  it  is  ordered  and  adjudged  by  this  Court, 
that  the  judgment  of  the  said  Court  of  Common  Pleas  be,  and  the 
same  is  hereby  affirmed  with  costs;  and  that  a  special  mandate  be 
sent  to  the  said  Court  of  Common  Pleas  to  carry  this  judgment 
into  execution. 


ERROR.  223 

Judgment  of  REVERSAii. 


A.  B.    ) 

vs.       >    In  Error. 
C.  D.    ) 

This  cause  came  on  to 
be  heard  on  the  transcript  of  the  record  from  the  Court  of  Com- 
mon Pleas  of County,  and  was  argued  by  counsel ;  on  con- 
sideration whereof,  it  is  ordered  and  adjudged  by  this  Court,  that 
the  judgment  of  t«e  said  Court  of  Common  Pleas  be,  and  the  same 
is  hereby  reversed,  with  costs;  and  that  the  said  A.  B.  be  restored 
to  all  things  which  he  has  lost  by  occasion  of  the  said  judgment ; 
and  that  a  special  mandate  be  sent  to  the  said  Court  of  Common 
Pleas  to  carry  this  judgment  into  execution.    See,  next  precedent. 


The  like,  specifying  the  causes  of  reversal. 


In  Error 


This  cause  came  on  to  be 
heard  on  the  transcript  of  the  record  from  the  Court  of  Common 
Pleas  of County,  and  was  argued  by  counsel  ;  on  considera- 
tion whereof,  this  Court  is  of  opinion,  that  there  is  error  in  the 
record  and  proceedings  of  the  said  Court  of  Common  Pleas,  in 
this,  to  wit :  that  it  appears  from  the  record  aforesaid,  that  the 
said  S.  H.  ivas  not  surety  on  the  note  upon  w/tic/i  the  judg/ncjit  set 
forth  in  the  said  declaration  was  rendered ;  and  also  in  this,  that 
the  said  S.  H.  being  hoxind,  ^-c.  [In  like  manner  specify  the  seve- 
ral grounds  of  reversal]  :  Therefore,  for  the  errors  aforesaid,  it 
is  ordered  and  adjudged  by  this  Court,  that  the  said  judgment  of 
the  said  Court  of  Common  Pleas  be,  and  the  same  is,  hereby  re- 
versed, with  costs;  and  that  the  said  A.  B.  be  restored  to  all  tlungs 
which  he  has  lost  by  occasion  of  the  said  judgment ;  and  that  a 


224  ERROR. 

special  mandate  be  sent  to  the  Court  of  Common  Pleas  to  carry 
this  judgment  into  execution,  (a). 


Judgment  of  reversal,  and  final  judgment  for  plaintiff. 


In  Error. 


This  cause  came  on  to  be 
heard  on  the  transcript  of  the  record  from  the  Court  of  Common 
Pleas  of County,  and  was  argued  by  counsel,  on  considera- 
tion whereof,  it  is  ordered  and  adjudged  by  this  Court,  that  the 
judgment  of  the  said  Court  of  Common  Pleas  be,  and  the  same  is, 
hereby  reversed,  with  costs  ;  and  that  the  said  A.  B.  be  restored 
to  all  tilings  which  he  has  lost  by  occasion  of  the  said  judgment ; 
and  thereupon,  this  Court  proceeding  to  render  such  judgment  as 
ought  to  have  been  rendered  by  the  said  Court  of  Common  Pleas, 
it  is  considered,  that  the  said  A.  B.  recover  of  the  said  C.  D.  the 

said  sum  of .  dollars  his  debt  aforesaid,  and  dollars  for 

his  damages  which  he  has  sustained  by  reason  of  the  detention  of 
said  debt,  and  also  dollars  for  his  costs  in  that  behalf  ex- 
pended ;  and  it  is  further  ordered,  that  a  special  mandate  be  sent 
to  the  said  Court  of  Common  Pleas  to  carry  tliis  judgment  into 
execution. 


Judgment  of  reversal,  and  cause  remanded  to  the  court  op 

COMMON  fleas  WITH  INSTRUCTIONS  TO  OVERRULE  DEMURRER. 
A.    B.      ^ 

VS.      >    In  Error. 
CD.) 

This  cause  came  on  to  be 
heard  on  the  transcript  of  the  record  from  the  Court  of  Common 


(o)  It  is  generally  advisable  to  specify  the  causes  of  reversal,  in  order  that 
the  Court  below  may  be  correctly  informed  of  the  grounds  of  euch  reversa' 


ERROR.  225 

Pleas  of County,  aud  was  argued  by  counsel ;  on  conside- 
ration whereof,  it  is  the  opinion  of  this  Court  that  there  is  error 
in  the  record  and  proceedings  of  the  said  Court  of  Common  Pleas* 
in  this,  to  wit :  [here  specify  the  grounds  ofreversaV]  :  Therefore, 
for  the  errors  aforesaid,  it  is  ordered  and  adjudged  by  this  Court, 
that  the  judgment  of  the  said  Court  of  Common  Pleas  be,  and  the 
same  is  hereby  reversed,  with  costs ;  and  that  the  said  A..  B.  be 
restored  to  all  things  which  he  has  lost  by  occasion  of  the  said 
judgment :  And  it  is  ordered,  that  tliis  cause  be  remanded  to  the 
said  Court  of  Common  Pleas  with  instructions  to  overrule  said 
demurrer,  and  to  proceed  without  delay  to  final  judgment  between 
the  said  parties,  according  to  law. 


Jui>GMENT    OF    REVERSAL,    AND    PROCEDENDO    AWARDED    TO    TUB 
COURT    OF    COMMON    PLEAS    FOR    FINAL   JUDGMENT. 

A.    B.      ^ 

vs.       >    In  Error. 
C.  D.    ) 

This  cause  came  on  to  be 
heard  on  the  transcript  of  the  record  from  the  Court  of  Common 
Pleas  of County,  and  was  argued  by  counsel ;  on  considera- 
tion whereof,  it  is  the  opinion  of  this  Court,  that  there  is  error  in 
the  record  and  proceedings  of  the  said  Court  of  Common  Pleas, 
in  this,  to  wit,  &c. ;  it  is,  therefore,  ordered  and  adjudged  by  this 
Court,  that  the  judgment  of  the  said  Court  of  Common  Pleas  be, 
and  the  same  is,  hereby  reversed,  with  costs  ;  and  that  the  said  A. 
B.  be  restored  to  all  things  which  he  has  lost  by  occasion  of  said 
judgment;  and  that  a  special  mandate  be  sent  to  the  said  Court  of 
Common  Pleas  to  carry  this  judgment  into  execution;  and  that  a 
writ  of  procedendo  also  be  sent  to  the  same  Court  of  Common 
Pleas,  to  proceed,  without  delay,  to  final  judgment  between  tlie 
said  parties,  according  to  law. 

Dd 


RO  Ef.ROR 


Judgment  op  KETSRfAi,  nv  ?akt.  a^jd  ArriRMANCE  in  paet. 


In  Error. 


This  cause  came  on  to  be 
heard  on  the  transcript  of  the  record  from  the  Court  of  Common 
Pleas  of County,  and  was  argued  by  counsel ;  on  considera- 
tion whereof,  it  is  ordered  and  adjudged  by  this  Court,  that  the 
judgment  of  the  said  Court  of  Common  Pleas,  so  far  as  relates  to, 
<Sz;c.  [Iiere  stats  the  ei'roneous  parts  of  the  judg?ncnf'\  be,  and  the 
same  is,  hereby  reversed  ;  and  that  the  said  A.  B.  be  restored  to 
all  things  he  has  lost  thereby;  and  that  the  residue  of  the  judgment 
aforesaid  be,  and  the  same  is,  hereby  affirmed:  And  it  is  further 
ordered  and  adjudged,  that  the  costs  of  this  suit  be  equally  divided 
between  the  said  plaintiff  and  defendant ;  and  that  a  special  man- 
date be  sent  to  the  said  Court  of  Common  Pleas  to  carry  this 
judgment  into  execution. 


Mandate. 

The  State  of  Ohio, County,  ss. 

To  the  Judges  of  the  Court  of  Common  Pleas  within  and 
for  said  County :    Greeti^-g. 

Whereas,  in  a  certain  action  of  Debt,  &;c.  lately  before  you, 
■wherein  A.  B.  was  plaintiff  and  C.  D.  defendant,  a  judgment  was 

rendered  by  you  in  favor  of  the  said  A.  B.  for  the  sum  of 

with  costs,  a  transcript  of  which  judgment  and  of  the  record  in 
said  action  was  brought  into  the  Supreme  Court  within  and  for 

said  County  of by  cur  writ  of  error ;  and  whereas,  at  the 

term  of  the  said  Supreme  Court,  A.  D. ,  on  considera- 
tion of  the  said  transcript,  it  was  ordered  and  adjudged  by  said 
Supreme  Court,  that  *  the  said  judgment  be  affirmed  with  costs,  or, 
reversed,  with  costs,  which  costs,  as  taxed,  amount  to  the  sum  of 


ERROR.  827 

dollars  :  You,  therefore,  arc  hereby  commanded,  that,  with- 
out delay,  you  cause  execution  to  be  had  of  the  said  judgment  of 
the  said  Supreme  Court,  according  to  law  ;  the  said  writ  of  error 
to  the  contrary  notwithstanding. 

Witness  :  T.  T.  Chief  Judge  of  the  Supreme  Court  of  the 
State  of  Ohio,  this day  of A.  D. . 

Attest. 

R.  C.  Clcrh  S.  C. County. 

Where  final  judgment  is  rendered  in  the  Supreme  Court,  or 
where  the  judgment  of  the  Court  below  is  affirmed  in  part,  and 
reversed  in  part,  &c.  such  judgment  of  the  Supreme  Court,  is  re- 
cited in  the  mandate,  and  the  direction  for  execution  varied  ac- 
cordingly. 


Mandate  for  execution  for  costs  in  error,  and  Procedenbo. 

[Proceed  as  in  the  last  precedent  to  the  *  that  the  said  judgment 
be  reversed,  with  costs,  which  costs,  as  taxed,  amount  to  the  sum 

of dollars;  and  that  said  cause  be  remanded  to  said  Court  of 

Common  Pleas  for  further  proceedings:  You,  therefore,  arc  hereby 
commanded,  that,  without  delay,  you  cause  execution  to  be  had  of 
the  said  judgment  for  costs ;  and  that  in  like  manner  you  proceed 
to  final  judgment,  between  the  said  parties,  according  to  law ;  the 
said  writ  of  error  to  the  contrary  notwithstanding. 

Witness,  &c.  ]_Conclude  as  in  the  last  pi-ecedcnt. 

When  the  mandate,  or  mandate  and  procedendo,  comes  down  t« 
the  Court  of  Common  Pleas,  the  cause  is  entered  upon  the  docket, 
with  the  same  title  as  before  the  original  judgment  was  rendered; 
and  the  proper  order  is  then  taken,  thus : 


liSS  ERROR. 


In  Debt. 


On  motion  to  the  Court,  by 
Mr.  O.  counsel  for,  &c.  and  upon  producing  a  mandate,  or,  man' 
date  and  procedendo,  from  the  Supreme  Court  of  the  State  of  Ohio, 
in  the  words  and  figures  following,  to  wit:  [Jiere  insert  the  man- 
date, SfC.  verbatim'].  It  is  ordered,  that  a  writ  rf  restitution,  or  a 
scire  facias,  or,  an  execution,  ^-c.  issue,  or,  that  a  new  trial  be 
had,  &c.  [according  to  the  command  of  the  mandate.] 


Writ  of  Restitution. 

The  State  of  Ohio County,  ss. 

To  the  Sheriff  of  said  County,  Greeting  ; 

Whereas,  A.  B.  lately  impleaded  C.  D.  in  our  Court  of  Com- 
mon Pleas  within  and  for  said  County  of in  a  certain  plea 

of  Debt,  and  such  proceedings  were  thereupon  had,  that  afterwards 
by  the  consideration  and  judgment  of  our  said  Court  of  Common 
PJeas,  the  said  A.  B.  recovered  against  the  said  C.  D.  the  sum  of 

• dollars  for  his  debt,  and dollars  lor  his  damages,  together 

with  dollars  for  his  costs :    And  thereupon  afterwards,  the 

said  C.  D.  prosecuted  our  writ  of  error  into  our  Supreme  Court, 
within  and  for  the  County  aforesaid,  for  the  reversal  of  the  said 
judgment,  and  such  proceedings  were  thereupon  had  in  our  said 

Supreme  Court,  that  at  the term  thereof,  A.  D. it  was 

ordered  and  adjudged  by  our  said  Supreme  Court,  that  the  judg- 
ment aforesaid  be  reversed,  with  costs,  which  costs,  as  taxed, 

f  mounted  to  the  sum  of dollars ;  and  that  the  said  C.  D. 

should  be  restored  to  all  things  which  he  had  lost  by  occasion  of 
the  said  judgment ;  and  thereupon  a  mandate  was  awarded  by  our 
said  Supreme  Court  to  our  said  Court  of  Common  Pleas  to  cause 
execution  to  be  had  of  the  said  judgment  of  our  said  Supreme 
Court;  as  is  certified  from  our  said  Supreme  Court  to  our  said 
Court  of  Common  Pleas :  *    And  whereas,  tlie  said  A.  B.  has  had 


ERROR.  229 

his  execution  of  liie  debt,  damages,  and  costs  aforesaid,  on  pre- 
tence of  the  said  judgment  of  our  said  Court  of  Common  Picas, 
and  is  yet  possessed  thereof,  as  we  have  been  given  to  understand: 
Therefore,  we  command  you,  that,  without  delay,  you  cause  the 

said  C.  D.  to  have  full  restitution  of  the  said  sum  of dollars, 

the  debt  aforesaid,  and  dollars,  the  damages  aforesaid,  and 

dollars,   the    costs   aforesaid,    together  with   legal  interest 

thereon,  from  [the,  date  of  the  original  judgment'];  ri.!  if 

you  cannot  cause  him  to  have  restitution  thereof,  that  then  you 
cause  the  same  to  be  levied  of  the  goods  and  chattels,  and  in 
default  thereof,  of  the  lands  and  tenements  of  the  said  A.  B.  in  your 
baliwick,  and  cause  that  money  to  be  delivered  without  delay,  to 
said  C.  D.  and  of  this  writ  make  legal  service  and  due  return. 

Witness  :  T.  T.  President  Judge  of  our  said  Court  of  Common 
Pleas,  this day  of A.  D.  

Attest 

F.  C.   Clerk. 


A  Ca.  Sa.  may  be  substituted,  in  the  above  precedent,  in  the 
place  of  the  Fi.  fa.  et  lev.  fa. 

The  writ  of  restitution,  it  seems  can  never  be  issued  unless  the 
judgment  of  reversal  specify  the  precise  thing,  or,  the  precise 
amount,  to  be  restored.  4  Ohio  Rep.  374.  Oliio  Conds.  83'J.  The 
judgment  of  reversal  is  seldom  or  never  thus  specific,  and  the 
safer  course,  in  general,  seems  to  be,  to  issue  a  scire  facias,  quare 
executionem  non. 


Scire  facias  quare  executionem  non. 

[Proceed  as  in  the  last  precedent  to  the  *  and  now  on  behalf 
of  the  said  C.  D.  iu  our  Court  of  Common  Pleas,  we  have  been 
informed,  that  the  said  A.  B.  has  had  his  execution  of  the  debt, 
damages,  and  costs  aforesaid,  on  pretence  of  the  saiil  judgment  of 
our  said  Court  of  Common  Pleas,  and  is  yet  possessed  tlicreof : 
And  we,  willing  that  what  is  just  should  be  done,  command  you 
that  you  make  known  to  the  said  A.  B.  that  he  appear  before  our 


230  ERROR. 

said  Court  of  Common  Pleas  on to  show  cause,  if  any  there 

be,  why  the  said  C.  D.  ought  not  to  have  execution  against  the 
said  A.  B.  for  the  amount  of  the  said  debt,  damages,  and  costs 
aforesaid,  according  to  the  force  and  eflcct  of  the  judgment  of  our 
said  Supreme  Court,  and  further  to  do  and  receive  whatever  our 
said  Court  of  Common  Pleas  shall  then  and  there  consider  of  him 
in  this  behalf;  and  have  you  then  there  this  writ. 

Witness,  &c.   [^Conclude  as  in  the  last  precedent.'] 

For  the  Form  of  a  judgment  upon  this  scire  facias,  See,  post. 
Judgments  in  Scire  Facias. 


SCIRE  FACIAS.  231 


Scire  facias. 


A  Scire  Facias,  is  a  writ  founded  on  some  matter  of  record,  ns 
judgments,  recognizances,  and  the  like;  and  its  office  is  to  make 
known  to  tiie  defendant  some  matter,  of  whicli,  he  has  a  right  to 
be  informed,  and  to  affjrd  iiim  an  opportunity,  if  he  sees  ht,  to 
show  cause  why  this  or  that  step  siioukl  not  be  talcen  against  him. 
2  Saiind.  71.  (4).  G  Danes  Ahg.  403.  It  is  sometimes  a  ncAo  ac- 
tion, and  sometimes  a  mere  continualion  of  tiie  former  action. 
Litt.s.  ,50").  F.  N.  5,207.  1  Saund.  72.  2  Wi,'s.  251.  1  T.  It 
207.  4  Ohio  Rep.  397.  Ohio  Conds.  842.  See,  post,  Pleadings 
in  Scire  Facias. 


No.  1.  Scire  Facias,  to  revive  a  judgment  for  plaintiff, 

AFTER    FIVE    YEARS. 


The  State  of  Ohio, County,  ss. 

To  the  SherifT  of  said  County:  Greeting. 


Whereas  A.  B.  on  the  ■ day  of A.  D. 


m  our 


Court  of  Common  Pleas  within  and  for  the  said  County  of 

recovered  a  judgment  against  C.  D.  in  a  certain  action  upon  the 

case,   Sfc.  for  the  sum  of dollars,  damages  and dollars 

costs,  amounting  in  all  to dollars  *  as  to  us  appears  of  record  • 

and  whereas  the  said  judgment  still  remains  unsatisfied,  as  we  are 
informed  by  the  said  A.  B.  We  therefore  command  you  that  you 
make  known  to  the  said  C.  D.  that  he  appear  before  the  Judges  of 
our  said  Court  of  Common  Pleas  on  the  first  day  of  their  next 
term,  to  show  cause,  if  any  there  be,  why  the  said  A.  B.  ought 
not  to  have  execution  against  him  of  the  damages  and  costs  afore- 
said :  and  further  to  do  and  receive  what  our  said  Court  shall  then 
and  there  consider  of  him  in  this  behalf:  and  have  you  then  ther« 
this  writ 


233  SCIRE  FACIAS. 

Witness  :    R.   R,   President  Judge    of  our   said   Court  this 
day  of A.  D. 


Attest. 


R.  C.  Clerh. 


No.  2.    TlIS    LIKS    IN    BEHALF    OF    ExECUTOil    Oil     ADMINISTRATOR 

OF    PLAINTIFF. 


{Proceed  as  iri  No.  1.  to  the  *  and  whereas  afterwards,  and 

before  execution  thereupon  had,  to  wit,  on at the  said 

A.  B.  "died,  having  first  duly  made  and  pubUshed  his  last  will  and 
testament,  and  appointed  ,E.  F  his  executor  thereof;  and  the  said 
E,  F.  since  the  death  of  the  said  A.  B.  hath  duly  proved  the  said 
will  and  taken  upon  himself  the  execution  of  the  same,"  or,  if  the 
plaintiff  died  intestate,  say,  "died  intestate,  after  whose  death,  let- 
ters of  administration  were  granted  in  due  form  of  law  to  E.  F." 
and  whereas  the  said  judgment  still  remains  unsatisfied,  as  we  are 
informed  by  the  said  E.  F.  We  therefore  command  you,  that  you 
make  known,  &c.  to  show  cause,  &c.  why  the  said  E.  F.  as  such 
executor,  ov,  administrator,  ought  not  to  have  execution,  &c.  {Con- 
clude as  in  No.  1 . 


No.  3.     The  like  to  revive  a  Judg^ient  against  Executor 
OR  administrator  of  Defendant. 


[Proceed  as  in  No.  1.  to  the  *  And  whereas  afterwards  and 

before  execution  thereupon  had,  to  wit,  on at the  said 

C.  D.  "died,  having  first  duly  made  and  published  his  last  will  and 
testament,  and  appointed  E.  F.  executor  thereof;  and  the  said  E. 
F.  hath  since  the  death  of  the  said  C.  D.  duly  proved  the  said  will 
and  taken  upon  himself  the  execution  of  the  same,"  or,  if  the  de- 
fendant died  intestate,  say,  "died  intestate ;  after  whose  death, 
letters  of  administration  wei-e  granted  in  due  form  of  law  to  E. 
F."     And  whereas  the  said  judgement  still    remains  unsatisfied^ 


SCIRE  FACIAS.  233 

as  we  are  informed  by  the  said  A.  B.  We  therefore  command  you 
that  you  make  known  to  the  said  E.  F.  as  such  executor  or  ad- 
ministrator that  he  appear  before  the  Judges  of  our  said  Court  of 
Common  Pleas  on  the  first  day  of  their  next  term,  to  show  cause, 
if  any  there  be,  why  the  said  A.  B,  ought  not  to  have  execution 
of  the  goods  and  chatties  of  the  said  C.  D.  in  the  hands  of  the  said 
E.  F.  yet  to  be  administered,  for  his  damages  and  costs  aforesaid, 
and  further  to  do,  &c.    \^Conclude  as  in  No.  1. 


N.o  4.   Scire  Faci.vs  to  make  Depe\da\ts  not  served  with 

ORIGINAL    process,    PARTIES    TO    JUDGMENT. 

The  State  of  Ohio County,  ss. 

To  the  Sheriff  of  said  County  :  {a)  Greeting. 

Whereas  A.  B.  on  the day  of A.  D. sued 

out  of  our  Court  of  Common  Pleas  within  and  for  the  said  Coun- 
ty of a  certatn  writ  of  Summons,  or.  Capias  ad  responden- 
dum against  C.  D.  E,  F.  and  G.  H.  in  an  action  o^  Assumpsit,  &c. 
which  said  writ  of  summons  was  afterwards,  to  wit:  on  ■ re- 
turned by  the  Sheriff  of  the  said  County  of "served"  as  to 

the  said  C.  D.  and  "not  found,"  as  to  the  said  E.  F.  and  G.  IT.  and 

whereas  afterwards,  to  wit,  on the  said  A.  B.  filed  in  our  said 

Court  of  Common  Pleas,  a  declaration  against  the  said  C.  D.  E. 
F.  and  G.  PI.  in  the  words  and  figures  following,  to  wit,  \Here 
insert  the  entire  declaration^^  and  thereupon  such  proceedings  were 

afterwards  had,  that  on the  said  A.  B.  in  our  said  Court  of 

Common  pleas  recovered  a  judgment  against  the  said  C.  D.  for 
the  sum  of dollars,  damages,  and dollars  costs,  as  ap- 
pears to  us  of  record ;  which  said  judgment  still  remains  unsatis- 
fied, OS  we  arc  informed  by  the  said  A.  B.  We  therefore  command 
you,  that  you  make  known  to  the  said  E.  F.  and  G.  H.  that  they 
be  before  our  said  Court  of  Common  Pleas  on  the  first  day  of  their 


(a)  The  County  where  the  defendant  in  Scire  facias  resides,  SUtt.  u^.  ^"J« 
p.  65.  }  []7. 

Ee 


234  SCIRE  FACIAS. 

next  term,  to  show  cause,  if  any  there  be,  why  they  and  each  of 
them  should  not  be  made  parties  defendants  to  the  judgment  atore- 
said,  and  why  execution  should  not  issue  against  them  and  each  of 
them  for  tlie  amount  thereof,  agreeably  to  the  Statute  in  such  case 
made  and  provided ;  and  further  to  do  and  receive,  &c.  \_Con- 
clude  as  in  No.   1. 


JNfo.  5.    Scire    Facias,    sugoesting  further  breaches  after 
Judgment  on  Penal  Bond. 


The  State  of  Ohio County,  ss. 

To  the  Sheriff  of  said  County,  Greeting: 

Whereas  A.  B.  on  the day  of A.  D. in  our 

Court  of  Common  Pleas  within  and  for  the  said  County  of 

recovered  a  judgement  against  C.  D.  for  a  certain  debt  of 

dollars,  also dollars  for  his  damages  and dollars  for  his 

costs,  which  said  judgment  was  rendered  upon  a  certain  writing 
obligatory,  dated,  &,c.  and  sealed  with  the  seal  of  the  said  C.  D. 
whereby  the  said  C.  D.  become  held  and  firmly  bound  to  the  said 

A.  B.  in  the  said  sum  of dollars  to  be  paid  to  the  said  A.  B. 

on  demand,  which  said  writing  obligatory  was  subject  to  a  certain 
condition  thereunder  written,  whereby  it  was  provided,  &c.  \_Here 
insert  the  condition  of  the  Bond]  And  whereas  the  said  A.  B.  hereto- 
fore suggested  a  certain  breach  of  the  said  condition,  to  wit,  that,  &c. 
[Here  insert  the  breach  as  originally  assigned]  And  whereas  it 
is  suggested  to  us  in  our  said  Court  of  Common  Pleas  by  the  said 
A.  B.  as  other  and  further  breaches  of  the  said  condition  of  the 
said  writing  obligatory,  that  after  the  recovery  of  the  said  Judg- 
ment, to  Vv'it,  on  &c  JHore  as^^ign  the  breaches,  See,  Debt,  ante. 
H  '.J  For  which  said  last  mentioned  breaches  of  the  said  condi- 
I'on,  the  said  A.  B.  hath  besought  us  to  provide  him  a  proper 
J  emedy :  We  therefore  command  you,  that  you  make  known  to 
the  said  C.  D.  that  he  appear  before  the  Judges  of  our  said  Court 
of  Common  Pleas,  on  the  first  day  of  their  next  term,  to  show  cause, 
if  any  he  hath,  why  execution  should  not  be  awarded  against  him 
upon  the  said  judgment  so  recovered  as  aforesaid,  for  the  damages 
to  be  assessed  by  reason  of  the  said  last  mentioned  breaches ; 
and  further  to  do  and  receive,  &c.  [Conclude  as  in  No.  1. 


SCIRE  FACIAS.  ?3i 


No.  6.     Scire  Facias    to    make  thu  Sureties    of    a  Sheriff 

PARTIES    TO    AN    AMERCEMENT. 

The  State  of  Ohio County,  ss. 

To  the  Coroner  of  said  County,  Greeting  : 

Whereas  on  the day  of A.  D. by  the  consid- 
eration and  judgment  of  our  Court  of  Common  Pleas  within  and 
for  the  said  County  of A.  B.  then  Sheriff  of  the  same  Coun- 
ty was  amerced  on  the  appUcation  and  for  the  use  of  C.  D.  in  the 

sum  of dollars  as  to  us  appears  of  record ;  and  whereas 

before  said  amercement,  to  wit,  on at E.  F.  and  G.  H. 

by  their  certain  writing  obligatory,  sealed  witii  their  seals  and 
dated  the  day  and  year  last  aforesaid,  as  sureties  of  the  said  A.  B. 
as  Sheriff  as  aforesaid,  acknowledged  themselves  to  be  held  and 

firmly  bound  to  the  State  of  Ohio,  in  the  penal  sum  of dollars 

to  be  paid  on  demand  :  and  whereas  the  said  amercement  is  still 
in  full  force  and  unsatisfied,  as  we  are  informed  by  the  said  C.  D. 
We  therefore  command  you,  that  you  make  known  to  the  said  E.  F 
and  G.  H.  that  they  appear  before  the  Judges  of  our  said  Court  of 
Common  Pleas,  on  the  first  day  of  their  next  term,  to  show  cause,  if 
any  there  be,  why  judgment  should  not  be  rendered  and  execution 
issued  against  them  for  the  amount  of  said  amercement,  and  further 
to  do,  &c.  [^Conclude  as  in  ^o.   1. 


No.  7.     Scire  Facias  to  Subject  real  estate  to  tub  pay- 
ment OF  A  Justices  Judgment- 


The  State  of  Ohio  County,  ss. 

To  the  vSheriff  of  said  County,  Greeting  : 

Whereas  A.  B.  on recovered  a  judgment  before  C.  T). 

one  of  the  Justices  of  the  Peace  within  and  for  the  said  County  of 
for  the  sum  of dollars,  damages  and dollars,  costs 


236  »SCIRE  FACIAS. 

against  E.  F.  upon  which  said  judgment  an  execution  was  issued 
by  the  said  C.  D.  and  returned  no  goods  found  whereon  to  levy  ; 
and  it  having  been  suggested  to  the  said  C.  D.  that  the  said  E.  F. 
is  possessed  of  lands  and  tenements,  as  to  us  appears  by  a  transcript 
of  the  said  judgment  and  proceedings  filed  in  our  Court  of  Com- 
mon Pleas  within  and  for  tiic  said  County  of We  therefore 

command  you,  that  you  make  known  to  the  said  E,  F.  to  appear 
before  our  said  Court  of  Common  Pleas  on  the  first  day  of  their 
next  term  (a)  to  show  cause,  if  any  there  be,  why  execution  should 
not  issue  against  his  lands  and  tenements  to  satisfy  said  judgment, 
aud  further  to  do,  &,c.[Co?icIude  as  in  No.  1. 


No.  8.    Scire  Facias  against  Special  Bau.. 

The  State  of  Ohio County,  ss. 

To  the  Sheriff'  of  said  County,  Greeting  : 

Whereas  G.  H,  and  E.  F.  on personally  appeared  before 

I.  R.  one  of  the  Judges  of  the  Suj)reme  Court  of  Ohio,  or,  one  of 
the  Judges  of  the  Court  of  Common  Pleas  within  and  for  the  said 

County  of or.  Clerk  of  the  Supreme  Court  of  the  State  of  Ohio, 

or,  Clerk  of  the   Court  of  Coiumon  Pleas  within  and  for  the  said 

County  of and  severally  acknowledged  themselves  to  owe 

unto  A.  B.  the  sum  of dollars  upon  condition  that  if  C.  D. 

should  be  condemned  at  the  suit  of  the  said  A.  B.  in  a  certain  ac- 
tion then  lately  commenced  and  pending  in  said  Court  of  Common 
Pleas,  or,  Supreme  Court,  he  the  said  C.  D.  should  pay  the  costs 
and  condemnation  of  the  Court,  or  be  rendered  or  render  himself 
into  the  custody  of  the  Sheriff  of  said  County,  for  the  same,  or,  in 
case  of  failure,  that  the  said  G.  H.  and  E.  F.  would  pay  the  cost 
and  condemnation  aforesaid,  for  the  said  C.  D.  as  by  the  record  of 
the  said  recognizance  to  us  appears  :  And  although  the  said  A.  B. 
afterwards,  to  wit,  on in  the  said  Court  of  Common  Pleas, 


(a)  It  is  not  necessary  to  take  a  rule  upon  the  defendant  to  plead  to  this 
Sci.fa.  and  fxecuiion  may  he  awarded  at  the  return  term  of  the  writ.  4 
OhUi  Rep.  7:!o.    Ohio  Coiids.  7.">4. 


SCIRE  FACIAS.  237 

or,  Supreme  Court,  recovered  a  judgment  against  the  said  C.  D. 

for  the  sum  of dollars  damages,  and dollars  costs,  as  by 

the  record  thereof  to  us  appears  ;  and  which  said  judgment  and 
recognizance  still  remain  in .  full  force  and  unsatisfied  ;  yet  the 
said  C.  D.  hath  not  as  yet  paid  the  said  costs  and  condemnation  of 
said  Court  nor  hath  he  rendered  himself,  nor  been  rendered,  into 
the  custody  of  the  Sheriff  of  said  County,  for  the  same,  according 
to  the  form  and  effect  of  the  said  recognizance  ;  as  we  are  given 
to  understand :  We  therefore  command  you  to  make  known  to  the 
said  G.  H.  and  E.  F.  that  they  appear  before  our  said  Court  of 
Common  Pleas,  or,  Supreme  Court,  on  the  first  day  of  their  next 
term,  to  show  cause,  if  any  there  be,  why  the  said  A.  B.  ought 
not  to  have  execution  against  them  for  the  damages,  and  costs 
aforesaid,  and  further  to  do,  4*c.  [Conclude  as  in  No.  1. 


238  SCIRE  FACIAS. 


Pleadings. 


^x  general  principles  in  relation  to  Pleading,  See,  Declara- 
tions in  Assumpsit,  ante.  20. 

In  England,  and  in  some  of  the  United  States,  it  is  customary 
to  file  a  declaration,  upon  the  return  of  the  scire  facias.  Such 
declaration  merely  recites  the  writ,  the  plaintiff's  appearance,  and 
the  return,  and  concludes  with  a  prayer  for  execution.  Tidd.  Pr. 
1042.  In  our  State,  it  seems  unnecessary  to  file  a  declaration  in 
any  case.  The  writ  of  scire  facias  must  itself  contain  every 
thing  necessary  to  constitute  a  good  declaration.  2  OJiio  Rep. 
240.  Ohio  Conds.  345.  4  Ohio  Rep.  397.  Ohio  Conds.  841. 
The  declaration  upon  a  sci.  fa.  is  no  more  than  a  copy  of  the 
writ,  and  a  demurrer  to  the  writ  has  the  same  legal  effect  and 
operation  as  a  demurrer  to  the  declaration.    1  Paine.  652. 

To  a  scire  facias,  the  defendant  may  plead,  nul  tiel  record. 
This  plea  is  proper  in  nil  cases  where  there  is  a  material  variance 
between  the  record  and  judgment,  as  set  forth  in  the  scire  facias. 
4  Salh.  598.  So,  a  release  of  all  actions,  or  executions.  Co.  Litt. 
290,  h.  12  Mass.  268.  2  T.  R.  46.  Or,  that  the  debt  has  been  levied 
by  execution.  D?/er  299.  1  Salk.  211.  Or,  payment.  \2  Mass. 
268.  But  nothing  can  be  pleaded  in  bar  that  might  have  been 
pleaded  in  the  original  action.  Cowp.  728.  1  Salk.  315.  4  Mass. 
218.  12  Mass.  268.  8  Johns.  Rep.  77.  Stat.  vol.  29,  p.  74,  §  88. 
Nor,  any  thing  contrary  to  the  title  on  which  the  recovery  was 
obtained,  or  which  shows  the  judgment  only  erroneous  and  voida- 
ble. Com.  Dig.  PL  (3  L.)  10.  Nor,  the  pendency  of  a  writ  of 
error,  on  the  same  judgment.  4  Mod.  247.  Semh.  contra.  Show. 
186.  Ski7i.  590.  To  a  scire  facias,  to  revive  a  judgment  in 
ejectment,  for  the  term  and  damages,  the  defendant  cannot  plead 
a  conveyance  made  by  the  lessor  of  the  plaintiff,  subsequent  to  the 
judgment.    1  Peters.  C.  C.  Rep.  446. 


SCIRE  FACIAS.  239 

No.  1.     Nul  tiel  record. 

Sci.  Fa. 

*  And  the  said  C.  D.  come* 

and  detends,  &c.  and  says,  that  the  said  A.  B.  ought  not  to  have 
his  execution  against  the  said  C.  D.  for  the  damages,  costs,  and 
charges  aforesaid,  because  he  says,  *  that  there  is  no  such  record 
of  recovery  against  him,  the  said  C.  D.  at  the  suit  of  the  said  A.  B. 
in  manner  and  form  as  the  aaid  A,  B.  hath  complained  against  him; 
and  this  he  is  ready  to  verify:  Wherefore,  he  prays  judgment  if 
the  said  A.  B.  ought  to  have  his  execution  aforesaid,  &c. 

By  T,  his  Attij, 

No.  2.     Payment. 

[Proceed  as  in  No.  1,  to  the  *  that 
the  said  C.  D.  after  the  recovery  of  the  judgment  aforesaid,  and 

before  the  issuing  of  the  said  writ,  to  wit,  on  paid  to  the 

said  A.  B.  the  sum  of .dollars  in  full  satisfaction  and  dis- 
charge of  the  said  judgment;  and  this,  &c.  [Conclude  as  in  No.  1. 


No.  3,     Death  of  principal,  before 
return  of  Ca.  Sa. 

[Proceed  as  in  No.  1,  to  the  *  that 
the  said  E.  F.  in  the  said  judgment  mentioned,  before  the  issuing 
of  the  said  first  writ  of  sci7-e  facias,  and  before  the  return  of  any 

writ  of  capias  ad  satisfaciendum  against  him,  died,  to  wit,  on 

at  — —  and  tliis,  &.C.  {a).  [Conclude  as  in  No.  1. 


(a)  Special  Hail  are  not  liable,  wiien  the  principal  dies  after  the  return 
of  the  ca.  set.  noil  est,  and  before  the  return  of  tiie  first  sci.  fa.  executed,  or 
Becond,  ;u7(7/.  The  Bail  are  discharged  by  the  death  of  tlie  principal.  The 
English  rule,  that  if  the  principal  die  after  tlie  return  of  the  ca.  sa.  non  est, 
the  bail  are  charged,  does  not  prevail  in  Ohio.  1  Ohio  Rip.  35.  Ohio 
Conds.  •^\. 


240  SCIRE  FACIAS. 


Verdicts. 


For  the  general  principles  in  relation  to  Trials  by  Jury,  and 
Verdicts,  See,  ante.  51. 

The  Forms  of  Verdicts  upon  special  issues,  in  scire  facias,  may 
in  general  be  taken,  with  slight  alterations,  from  the  like  verdicts 
in  Assumpsit  and  Debt. 


Judgments. 

For  the  Forms  of  Judgments,  on  Demurrer,  Non-suit,  Abate- 
ment, Default,  &c.  See,  same  titles,  in  Assumpsit. 


No.  1.     Judgment  of  Revivor,  by  Default. 
Sci.  Fa. 


This  day  came  the  said  A.  B. 
and  the  said  C.  D.  being  solemnly  called,  came  not,  but  made 
default :  *  Therefore,  it  is  considered  that  the  said  A.  B.  have  his 
execution  against  the  said  C.  D.  of  the  damages  and  costs  afore- 
said, according  to  the  force,  form,  and  effect  of  the  said  recovery; 
and  also  for dollars,  his  costs  in  this  behalf  expended. 


No.  2.  Judgment  for  plaintiff, 
on  nul  tiel  record. 

A.  B.    ) 

vs.      \    Sci.  Fa. 
CD.) 

This  day  came  the  parties  by 
their  attorneys,  and  the  record  aforesaid  being  inspected  by  the 


SCIRE  FACIAS.  241 

Court,  it  sut^ciently  appears,  that  there  is  such  a  record  of  reco- 
very against  the  said  C.  D.  at  the  suit  of  the  said  A.  B.  as  he  hath 
alleged :  Whereupon,  it  is  considered,  that  the  said  A.  B.  have 
his  execution  against  the  said  C.  D.  of  his  debt,  damages,  and 

costs,  aforesaid  :  and  also  for dollars  his  costs  in  this  behalf 

expended. 


No.  3.     Judgment  of  revivor,  by  default  against  > 
executor  or  administrator.  ^ 

[Proceed  as  in  No.  1,  to  the  * — 
Therefore,  it  is  considered,  that  the  said  A.  B.  have  his  execution 
against  the  said  C.  D.  as  such  executor,  or,  administrator,  as  afore- 
said, of  the  damages  and  costs  aforesaid,  to  be  levied  of  the  goods 
and  chattels  which  M'ere  of  the  said  E.  F.  ot  the  time  of  his  death, 
in  the  hands  of  the  said  C.  D.  yet  to  be  administered  ;  and  also 

for dollars  his  costs  in  this  behalf  expended,  and  also  to  be 

levied  of  the  like  goods  and  chattels  of  the  said  E.  F. 


No.  4.  The  like  to  make  defendants  not  served  ^ 
with  original  process,  parties  to  a  > 
Judgment.  ) 

[Proceed  ets  in  No.  1,  to  the  * — 
Thej'efore,  it  is  considered,  that  the  said  E,  F.  and  G.  IL  be  made 
parties  defendants  to  the  judgment  aforesaid,  and  that  said  A.  B. 
have  his  execution  against  the  said  E.  F.  and  G.  H.  of  the  dama- 
ges  and  costs  aforesaid :  and  also,  &c.  [Conclude  as  in  No.  1.] 


No.  5.     The  like,  on  suggestion  of  further  breaches 
after  judgment  on  penal  bond. 

[Proceed  as  in  No.  1,  to  the  * — 
Therefore,  it  is  considered,  that  the  said  A.  B.  have  his  execution 
against  the  said  C.  D.  for  his  damages  aforesaid,  in  form  aforesaid 
assessed ;  and  also  for  dollars,  his  costs  in  this  behalf  ex- 
pended. 

F" 


842  SCIRE  FACIAS. 

No.  G.     The  like,  against  special  hail. 

[Pi'oceed  as  in  No.  1 ,  to  the  * — 
Therefore,  it  is  considered,  that  the  said  A.  B.  have  his  execution 
against  the  said  E.  F.  and  G.  H.  of  his  debt,  damages  and  costs 
aforesaid ;  and  also  for dollars,  his  costs  in  tliis  behalf  ex- 
pended. 

For  the  For7n's  of  Judgments  upon  Verdicts,  &c.  See,  Judg- 
ments in  Assumpsit  and  Debt. 


CERTIORARI.  243 


Certiorari. 


In  England,  a  writ  of  certiorari  is  an  original  writ  issuing  out 
of  the  Court  of  Chancery,  or  the  King's  Bench,  or  Common 
Pleas,  directed  in  the  King's  name  to  inferior  judges  or  officers, 
commanding  them  to  certif}^  or  to  return  the  records  of,  a  case 
depending  before  them,  to  the  end  that  the  party  may  have  the 
more  sure  and  speedy  justice  before  the  King,  or  such  justices 
as  he  shall  assign  to  determine  the  cause.  1  Bac.  Ahg.  349.  F. 
N.  B.  245.  Com.  Dig.  Tit.  Certiorari.  When  it  issues  out  of 
Chancery,  it  is  returnable  in  that  Court,  and  the  record  when 
brought  up,  if  required  in  any  other  Court,  must  be  sent  to  them 
by  mittimus.    Tidd.  Pr.  400.    Peter sd.  Ahg.  214. 

In  Ohio,  the  Supreme  Court  and  Court  of  Common  Pleas,  may 
issue  this  writ  upon  good  cause  shown.  Stat.  vol.  29,  p.  2G,  §  3.  4. 
It  lies  direct  from  the  Supreme  Court  to  inferior  jurisdictions,  as 
well  as  to  the  Court  of  Common  Pleas,  but  will  be  allowed  to 
such  inferior  jurisdictions,  only  in  extraordinary  cases.  3  Ohio 
Rep.  383.  Ohio  Conds.  618.  In  what  cases,  and  under  what  cir- 
cumstances, a  certiorari  will  lie  from  the  Supreme  Court,  to  the 
Court  of  Common  Pleas,  does  not  seem  to  bo  very  well  settled. 
Error  lies  upon  final  judgments,  and  the  certiorari,  seems  to  be 
the  appropriate  remedy  for  correcting  errors  in  the  orders  and 
other  acts  of  the  Court,  which  cannot  be  reach(ul  by  the  writ  of 
error.  It  is  the  proper  remedy  to  correct  the  errors  of  the  Com- 
mon Pleas,  upon  an  application  to  redeem  lands  sold  for  taxes. 
3  Ohio  Rep.  277.  Ohio  Conds.  573.  3  Ohio  Rep.  301.  Ohio 
Conds.  587.  {a).  It  is  also  the  writ  sent  down  from  the  Supreme 
Court  upon  the  suggestion  of  diminution  in  the  record,  in  cases  of 
error.   See,  Error,  ante.  215. 

The  most  common  use,  however,  of  this  writ,  is  to  correct  the 
errors  of  justices  of  the  peace,  in  the  Court  of  Common  Pleas.     It 


(o)  For  the  form  of  a  Certiorari  from  the  Supreme  Court  to  the  Court  of 
Common  Plc.nF,  Sic.  Sek,  Select  Wriln,  No.  11. 


244  CERTIORARI. 

may  be  allowed  in  term,  at  any  time  before  satisfaction  of  the 
judgment,  and  within  five  years  from  its  date.  Stat.  vol.  29,  p. 
180,  §  57.  It  may  also  be  allowed  by  any  single  judge  in  vaca- 
tion, at  any  time  within  fifteen  days,  after  the  rendition  of  the 
judgment.  Ihid,  §  56.  It  cannot  be  issued,  however,  until  the 
applicant  shall  execute  a  bond  to  the  adv-erse  party,  with  sufficient 
surety,  resident  within  the  County,  conditioned  for  the  payment 
of  all  costs  and  charges  which  have  accrued,  or  may  accrue  on 
such  writ,  together  with  the  amount  of  any  judgment  that  may  be 
rendered  against  the  appellant,  on  the  further  trial  of  the  cause, 
after  the  judgment  of  the  Court  below  shall  be  set  aside  or  re- 
versed ;  and  from  the  execution  of  such  bond,  the  writ  of  certiorari 
operates,  in  all  cases,  as  a  supersedeas  to  execution.  Ihid,  55,  58. 
The  first  step  to  be  taken  by  a  party  aggrieved,  is,  to  procure 
from  the  justice  of  the  peace  a  transcript  of  the  proceedings  be- 
fore him,  upon  which  errors  are  assigned,  as  in  cases  of  writs  of 
error,  ante.  210.  2  Ohio  Rep.  127.  Ohio  Conds.  244.  The 
transcript  is  then  presented  to  a  .Judge,  if  in  vacation,  or  to  the 
Court  in  term  time.  If  a  Judge  in  vacation  allows  the  writ,  he 
makes  the  Tollowing  endorsement  on  the  back  of  the  transcript : 


Form  of  allowance  of  a  certiorari  by  a  judge  in  vacation. 


Let  a  writ  of  certiorari  issue  in  the  within  case,  upon  the  ap- 
plicant giving  bond  and  security  according  to  law. 


E.  F.  Judge,  <^r. 


To  the  Clerk  of Com.  Pleas. 

Dated,  &c. 


If  the  writ  be  allowed  by  the   Court  in  term  time,  the  entry 
upen  the  journal  is  thus: 


CERTIORARI.  24^ 


Form  or  allowance  of  certiokari  bt   rnr;  coruT. 


A.  B.     1 

vs.       >    Certiorari. 
C.  D.    ) 

On  motion  to  the  Court  by  ?vlr.  O. 
counsel  for  the  said  A.  B.  and  upon  producing  a  transcript  of  the 
proceedings  in  this  cause  before  E.  F.  justice  of  the  peace  of  the 
township  of and  County  of and  the  Court  having  in- 
spected the  same  and  the  errors^ thereupon  assigned,  do  order  a 
certiorari  to  be  issued  herein  to  the  said  E,  F.  returnable  at  the 
next  term,  upon  the  said  A.  B.  giving  bond  and  security  according 
to  law. 


The  transcript  is  then  filed  with  Clerk,  who  enters  the  cause 
upon  the  appearance  docket,  and  takes  the  bond  as  follows  : 


Form  of  a  Certiorari  Bond. 

Know  all  men  by  these  presents,  that  we  C.  D.  («)  and  E.  F. 

of  the  County  of and  State  of  Oliio,  are  held  and  lirmly 

bound  unto  A.  B.  of,  &c.  in  the  penal  sum  of dollars,  (h)  to 

the  payment  of  which,  well  and  truly  to  be  made,  we  do  hereby 
jointly  and  severally  bind  ourselves,  our  heirs,  executors,  and 

administrators,  sealed  with  our  seals,  and  dated  this  day  of 

A.  D. 

The  condition  of  the  above  obligation  is  such,  that  whereas  the 
said  C.  D,  hath  this  day  obtained  the  allowance  of  a  writ  of  certio- 
rari to  remove  into  the  Court  of  Common  Pleas,  of  said  County 


[a]  It  is  not  indispensably  necessary,  that  the  applicant  himself  should 
execute  the  bond. 

[b)  The  Clerk  must  exercise  his  discretion  as  to  the  amount  of  the  pe- 
nalty. 


I>4G  CERTIORARI. 

of a  certain  judgment  for  the  sum  of dollars  damages, 

and dollars  costs,  lately  rendered  against  the  said  C.  D  by 

E.  F.  a  justice  of  the  peace  within  and  for  the  said  County  of 

in  a  certain  action  then  pending  before  him>  wherein  the  said  C.  D. 
was  plaintiff,  and  the  said  A.  B.  defendant :  Now,  if  the  said  C.  D. 
shall  well  and  truly  pay  all  the  costs  and  charges  which  have  ac- 
crued or  which  may  accrue  in  the  prosecution  of  said  writ  of 
certiorari,  together  with  the  amount  of  any  judgment  that  may 
be  rendered  against  the  said  C.  D.  on  the  further  trial  of  said 
cause,  after  the  said  judgment  of  the  said  justice  of  the  peace 
shall  have  been  set  aside  or  reversed,  then  this  obligation  shall  be 
void;  otherwise,  in  full  force  and  virtue  in  law. 

C.  D.  [seal.] 

E.  F.   [seal.] 

Approved. 

G.  R.  Clerh Com.  Pleas. 


The  bond  being  executed  and  filed,  a  writ  of  Certiorari  is  issued 
to  the  justice  of  the  peace  for  another  transcript. 


Form  of  a  Writ  or  Certiorari. 

The  State  of  Ohio County,  ss. 

To  E.  F.  Esq.  a  justice  of  the  peace  within  and  for  the  township 
of and  County  aforesaid.  Greeting  : 

We  command  you,  that  a  certified  transcript  of  the  record  and 
proceedings  of  a  certain  suit  lately  pending  before  you,  wherein 
A.  B.  was  plaintiff,  and  C.  D.  was  defendant,  and  wherein  you  on 

rendered  a  judgment  for  the  sum  of dollars  damages, 

and dollars  costs,  in  favor  of  the  said  A.  B.  and  against  the 

said  C.  D.  with  all  things  touching  the  same  as  fully  as  the  same 
are  now  before  you,  you  send,  sealed  and  enclosed  with  this  writ, 


CERTIORARI.  247 

to  our  Court  of  Common  Pleas  within  and  lor  the  said  County  of 
on  the  first  day  of  their  next  term. 

Witness  :  T,  T.  President  Judge  of  our  said  Court  of  Common 
Pleas,  this day  of A.  D. 

Attest 

F.  C.   Clerk. 


This  writ  is  taken  to  the  justice  of  the  peace,  by  tlie  party  or 
his  agent,  who  makes  out  a  certified  copy  of  the  proceedings 
before  him,  and  in  hke  manner  transmits  the  same,  enclosed  and 
sealed  up  with  the  writ,  to  the  proper  Court. 

After  the  writ  has  been  issued,  the  plaintiff  in  certiorari,  must 
give  written  notice  thereof,  to  the  adverse  party,  his  agent  or 
attorney,  if  resident  in  the  County,  and  this  notice  must  be  per- 
sonally served  by  reading,  or  by  copy  left  at  the  dwelling  house 
or  place  of  abode  of  such  party  ;  but  if  the  adverse  party,  his 
agent  or  attorney,  be  not  a  resident  of  the  County,  the  notice 
must  be  given  by  advertisement  posted  up  in  three  of  the  most 
public  places  in  the  County.  This  notice  must  be  given  ten  days 
before  the  term  of  the  Court  to  which  the  writ  is  made  returnable; 
but  if  that  number  of  days  does  not  intervene  between  the  date 
and  return  of  the  writ,  the  Court  will  make  such  order  respecting 
the  notice  to  be  given,  as  they  shall  deem  proper.  Stat.  vol.  29, 
p.  180,  §  59,  60. 


Form  of  Notice. 


To  A.  B. 

Take  notice,  that,  at  my  instance,  a  writ  of  cei-tiorari  has 
been  allowed  and  issued,  to  remove  into  the  Court  of  Common 

Pleas  of County,  a  judgment  rendered  against  me  and  in 

your  favor,  on  by  E.  F.  a  justice  of  the  peace  within  and 

for  the  township  of  and  County  aforesaid,  for  the  sum  of 


248  CERTIORAIIJ. 

dollars  damages,  and dollars  costs;  and  that  at  the  next 


term  of  said  Court,  I  shall  pray  a  reversal  of  said  judgment. 

C.  D. 
Dated,  &:c. 

This  notice  may  be  served  by  the  Sheriff  or  any  other  compe- 
tent person. 


Upon  the  return  of  the  "writ  and  transcript  by  the  justice  of 
the  peace,  the  plaintiff  in  certiorari,  within  the  time  limited  by  the 
rules  of  the  Court,  assigns  errors  anew  upon  the  transcript  so 
returned,  and  the  cause  proceeds  to  a  hearing,  as  in  cases  of  writs 
of  error.  For  the  Forms  of  assignment  of  errors.  See,  Error, 
ante.  210. 


Judgments. 

If  the  judgment  of  the  justice  be  affirmed,  the  Court  will  render 
judgment  against  the  plaintiff  in  certiorari,  for  the  costs  of  suit, 
and  will  direct  the  judgment  of  affirmance  to  be  certified  to  the 
justice;  or  will  award  execution  to  carry  into  effect  the  judgment 
of  the  justice,  in  the  same  manner  as  if  such  judgment  had  been 
rendered  in  the  Court  of  Common  Pleas;  but  where  the  judgment 
of  the  justice  is  reversed,  the  Court  will  render  a  judgment  against 
the  defendant  in  certiorari,  for  all  costs  wliich  have  accrued  up 
to  the  time  of  the  reversal,  but  the  cause  is  retained  in  the  Common 
Pleas  for  trial  and  final  judgment,  as  in  cases  of  appeal.  Stat.  vol. 
29,  p.  181,  §  61,  62. 


CERTIORARI.  24»- 


JUDGRIENT    OF    AFFIRMANCE. 


Certiorari. 


This  cause  came  on  to  be 
heard  on  the  transcript  of  the  record  and  proceedincrs  before  E. 

F.  a  justice  of  the  peace  within  and  for  the  township  of and 

County  of and  was  arf^ued  by  counsel  ;   on  consideration 

whereof,  it  is  ordered  and  adjudged  by  this  < 'ourt,  that  the^  judg- 
ment of  the  said  E.  F.  be,  and  the  same  is  hereby  a'Tirmed,  with 
costs ;  *  and  that  this  judgment  be  certified  to  the  said  E.  F.  th;U 
further  proceedings  may  be  thereupon  had  according  to  law. 


The   like,  with  an  awarw  of  execution  upon  justice's 
judgment. 

[^Proceed  as  in  the  last  preced3nt  to  the  *  and  it  is  further 
ordered,  that  execution  issue  herein  agiinst  the  said  C.  D.  as  well 

for  the  costs  aforesaid  as  for  the  sun  of djiiars  tho  a-n  ^jat 

of  tile  said  judgment  of  tlie  said  E.  F.  amounting  in  ail   to  

dollars^ 


Judgment  of  Reversal. 


Certiorari 


This  cause  came  on  to  be 
heard  upon  the  transcript  of  the  record  and  proceedings  before 

E.  F.  a  justice  of  the  peace  within  and  for  the  township  of 

and  County  of and  was  argued  by  counsel ;  on  considera- 
tion whereof,  it  is  ordered  and  adjudged  by  this  Court,  that  the  judg- 

G« 


250  CERTIORARI. 

ment  of  the  said  E.  F.  be,  and  the  same  is,  hereby  reversed,  with 
costs ;  and  it  is  further  ordered,  that  execution  issue  herein  against 
the  said  A.  B.  as  well  for  his  costs  aforesaid,  as  for  his  costs  before 

the  said  E.  F.  amounting  in  all  to dollars  :    And  it  is  further 

ordered,  that  this  cause  be  continued  for  trial  and  final  judgment. 


The  judgment  being  thus  reversed,  the  plaintiff  in  the  Court 
below  becomes  plaintiff  in  the  Court  of  Common  Pleas,  a  decla- 
ration is  filed,  and  the  cause  proceeds  on  to  trial,  as  if  originally 
commenced  in  the  Court  of  Common  Pleas. 


CHANCERY.  261 


Chancery. 


No  uniform  system  of  Chancery  pleadings  has  been  established  in 
the  United  States.  Courts  of  equity  in  the  United  States  are  created 
by  the  Federal  and  State  Constitutions  and  Statutes  ;  and  by  these 
their  general  powers  are  conferred  and  their  jurisdiction  limited. 
Subject  to  such  limitations,  the  pleadings  and  proceedings  in  our 
Courts  of  Equity,  are  in  general  regulated  by  the  rules  and  prac- 
tice of  the  English  Court  of  Chancery  ;  especially  as  to  the  modes 
of  proof,  of  trial  and  relief  By  the  constitution  of  Ohio,  the 
Supreme  Court  is  vested  with  original  and  appellate  jurisdiction, 
and  the  Court  of  Common  Pleas  with  original  jurisdiction,  in 
Chancery,  in  such  cases  as  shall  be  directed  by  law.  Art.  III.  § 
2.  3.  By  the  Statute  of  Ohio,  Vol.  29.  j9.  81.  §  1,  2,  3.  the  Court 
of  Common  Pleas  is  vested  with  jurisdiction  in  all  cases,  proper- 
ly cognizable  by  a  Court  of  Chancery,  in  which  plam,  adequate, 
and  complete  remedy  cannot  be  had  at  law ;  and  the  Supreme 
Court  is  also  vested  with  concurrent  jurisdiction  with  the  Court 
of  Common  Pleas,  in  all  cases  properly  cognizable  by  a  Court  of 
Chancery,  where  the  title  to,  or  any  contract  in  relation  to  land 
is  in  question,  or  the  sum  or  matter  in  dispute,  exceeds  one 
thousand  dollars  in  value  ;  and  apijcllate  jurisdiction,  in  all  cases, 
regularly  brought  before  them,  from  the  Chancery  dicisions  of  the 
Court  of  Common  Pleas.  The  power  is  likewise  conferred  upon 
the  Sui)romc  Court  and  Courts  of  Common  Pleas  sitting  as  Courts 
of  Chancery,  to  make  rules  and  regulations,  for  the  government 
of  proceedings  had  before  them  ;  and  they  are,  in  all  things,  to  be 
governed  by  the  known  usuages  of  Courts  of  Equity,  except  where 
it  may  be  otherwise  ])rovidc(l  by  law.  Ihid.  The  Statute  directing 
the  mode  of  i)rocceding  in  C'hancery,  vol.  29.  ]>.  81.  has  in  many 
respects  entirely  changed  the  course  <»f  jjrocccdings,  and,  in  gene- 
ral, has  greatly  simplified  the  practice  as  known  and  followed  in 
Courts  of  Equity  in  England,  and  in  some  of  the  United  States : 
but  still  the  great  question  of  Jurisdiction,  the  several  kinds  ajid 


252  CERTHDRARI. 

distinctions  of  Bills,  the  peculiar  mode  of  proof,  trial  and  relief, 
together  with  the  innumerable  details  of  practice,  are  in  a  great 
measure  governed  by  the  "known  usages  of  Courts  of  Equity." 
Some  of  the  leading  features  of  Chancery  practice,  as  modified 
by  our  Statute,  and  by  usuage,  will  be  found  in  the  subsequent 
pages. 


CHANCERY.  253 


Of  the  several  kinds  or  Bills. 

The  several  kinds  of  Bills  arc  usually  classed  under  three  gene- 
ral heads.  I.  Original  Bills,  which  relate  to  some  matter  not  before 
litigated  in  the  Court  by  the  same  persons  standing  in  the  same 
interest.  II.  Bills  not  original,  which  are  either  an  addition  to,  or 
a  continuance  of  an  original  Bill,  or  both.  III.  Bills,  which  though 
occasioned  by  or  seeking  the  beneht  of  a  former  Bill,  or  of  a  deci- 
sion made  upon  it,  or  attempting  to  obtain  a  reversal  of  a  decision 
are  not  considered  as  a  continuation  of  the  former  Bill,  but  in  the 
nature  of  origmal  Bills. 

Original  Bills  are  subdivided  into  Bills  praying  relief,  and  Bills 
not  praying  relief.  An  original  Bill  praying  relief,  may  be.  1. 
A  Bill  praying  the  decree  or  order  of  the  Court  toucliing  some 
right  claimed  by  the  person  exhibiting  the  Bill,  in  opposition  to 
some  right  claimed  by  the  person  against  whom  the  Bill  is  exhibit- 
ed. 2.  A  Bill  of  Interpleader.  3.  A  Bill  praying  the  writ  of 
Certiorari  to  renove  a  cause  Irom  an  inferior  Court  of  Equity, 
(a) An  original  Bill  not  praying  relief,  may  be,  1.  A  Bill  to  per- 
petuate testimony.  2.  A  Bill  of  Discovery. 

Of  Bills  not  original,  which  are  either  an  addition  to,  or  a  con- 
tinuance of,  an  original  Bill,  or  both,  are,  1.  A  supplemental  Bill. 
2.  A  Bill  of   revivor..     3.  A  Bill  both  of  revivor  and  supplement. 

Of  Bills  in  the  nature  of  original  Bills,  there  are,  i.  A  cross 
Bill.  2.  A  Bill  of  Review.  3.  A  Bill  in  the  nature  of  a  Review. 
(b)  4.  A  Bill  to  impeacli  a  decree  upon  the  ground  of  fraud.  5. 
A  Bill  to  suspend  the  operation  of  a  decree.  6.  A  Bill  to  carry 
a  former  decree  into  execution.  7.  A  Bill  in  the  nature  of  a  Bill 
of  Revivor.  8.  A  Bill  in  the  nature  of  a  supplemental  Bill.  Mit. 
PL  31.     1).  A  Petition  for  a  re-hearinff. 


(a).  No  instance  is  known  where  this  Bill  has  been  resorted  to  in  the 
State  of  Ohio. 

(b)  The  only  distinction  between  the  Bill  of  review  and  the  Bill  in  the 
nature  of  a  Bill  of  review,  in  England,  is  that  the  one  is  brought  before, 
and  the  other  after,  the  decree  is  enrolled.  This  distinction  docs  not  e.xist 
in  our  practice.     See  post.  JiilU  of  Review. 


25*  CHANCERY. 


Original  Bills. 


In  the  English  treatises  upon  Chancery  practice,  a  Bill  is  usually- 
described  as  consisting  of  nine  parts.  1.  The  address.  2.  The 
names  and  descriptions  of  the  plaintiffs.  3.  The  statement  of  the 
facts.  4.  The  charge  of  confederacy.  5.  The  pretences  and 
charges.  6,  An  averment  that  the  acts  complained  of  are  con- 
trary to  equity.  7.  The  prayer  for  an  answer,  or  interrogating 
part.  8,  The  prayer  for  relief.  9.  The  prayer  for  process.  Coop. 
Eq.  9.  Mad.  Ch.  166.  Several  of  these  constituent  parts  of  a 
Bill  are  not  considered  absolutely  necessary.  Thus  the  fourth, 
fifth,  sixth  and  seventh  parts,  as  above  enumerated,  are  in  general 
considered  mere  form,  and  may  be  omitted.  Redes.  Tr.  Ch.  PL 
46.  Coop.  Eq.  10.  Still  however,  in  an  English  Bill,  which  is 
paid  for  by  the  nwnher  of  words  it  contains,  the  nine  constituent 
parts  are,  in  general,  set  forth  in  regular  and  ample  form  ;  and  Bills 
are  rarely  found,  comprised  in  so  few  as  fifteen  sheets,  the  length 
prescribed  by  an  order  of  1  ^ord  Bacon  :  an  order  which  has  long 
since  become  obsolete.  It  is  a  standing  complaint  in  England, 
that  Chancery  pleadings  run  into  a  great  deal  of  unnecessary  verbi- 
age. 1  Ves.  Jun.  350.  Till  a  comparatively  modern  period,  the  Eng- 
lish Bill  contained  very  little  more  than  the  stating  part,  with  a 
simple  prayer,  that  the  defendant  might  answer  the  matters  con- 
tained in  the  Bill,  and  for  relief.  Mad.  Ch.  168.  Lord  Eldon 
speaks  with  approbation,  of  this  plain  and  simple  mode  of  pleading. 
"Formerly  the  Bills  contained  little  more  than  the  stating  part. 
I  have  seen  such  a  Bill ;  with  a  simple  prayer,  that  the  defendant 
may  answer  all  the  matters  aforesaid,  and  then  the  prayer  for  relief. 
I  believe  the  interrogating  part  had  its  birth  before  the  charging 
part.  Lord  Kenyon  never  would  put  in  the  charging  part ;  which 
does  little  more  than  unfold  and  enlarge  the  statement."  II.  Ves. 
574. 

In  Ohio  there  is  little  or  no  uniformity  in  framing  the  Bill.  Most 
of  tlie  younger  members  of  the  profession,  fearful  of  the  conse- 
quences of  a  deviation,  closely  adhere  to  the  nine  constituent  parts 
of  the  English  Bill.  Further  experience  shows  this  practice  to  be 
useless,  troublesome  and  expensive ;  and  as  a  consequence,  it  not 


CHANCERY.  255 

unfrequently  happens,  that  the  other  extreme  is  fallen  into,  Oind  form 
is  too  little  regarded  or  entirely  overlooked.  Our  Statute,  vol.  29, 
p.  81.  ^  4.  provides,  that  all  applications  to  the  Chancery  side  of 
the  Supreme  Court  or  Court  of  Common  Pleas,  shall  be  by  peti- 
tion, setting  forth  the  nature  and  grounds  of  the  defendant's  claims. 
This  is  almost  a  Uteral  description  of  the  English  Bill,  in  its  prim- 
itive form,  which  was  nothing  but  a  petition  to  the  King,  and  by 
him  referred  to  the  Chancellor  as  the  keeper  of  his  conscience. 
The  definition  given  to  the  English  Bill,  until  a  comparitively  mod- 
ern period  of  time,  is  perhaps  strictly  applicable  to  what  a  Bill 
ought  to  be.  in  the  State  of  Ohio:  A  petition  to  the  proper  Court 
containing  a  statement  of  the  facts  of  the  complainant's  case,  fol- 
lowed by  a  prayer  to  grant  suitable  relief,  and  for  that  purpose  that 
the  suhpcena  may  issue  to  bring  before  it  the  parties  complained  of. 
Coop,  Eq.  29.  4. 


256  CHANCERY. 


t 


FORMS    OF    ORIGINAL    BILLS. 


No.   1.     Bill  for.  a  Specific  Performance,  Vendee 
AGAINST  Vendor. 

To  the  Supreme  Court,  (a)  or,  Court  of  Common  Pleas,  within 

and  for  the  County  of and  State  of  Ohio,  in  Chancery 

sitting : 

A.  B.  of,  &c.  {b)  *  represents  that  C.  D.  of,  &c.  (c)  (and  whom 
your  orator,  (d)  prays  may  be  made  defendant  to  this  Bill)  on  or 


(a)  The  Bill  may  be  originally  filed  in  the  Supreme  Court,  in  all  cases, 
where  the  title  to,  or  any  contract  in  relation  to  land  is  in  question,  or  the 
Bum  or  matter  in  dispute,  exceeds  one  thousand  dollars  in  value.  Slat.  ■ool. 
29,  p.  81, 5  2.  In  practice,  however,  the  Bill  is  rarely  filed  in  the  Supreme 
Court,  in  the  first  instance.  That  Court  holds  but  one  session  in  each 
County  annually,  and  a  cause  will  in  general  be  brought  to  a  final  hearing 
Booner  in  the  Supreme  Court,  by  filing  the  Bill  in  thi;  Common  Pleas,  and 
appealing  from  its  decision,  than  to  commence  in  the  Supreme  Court.  See, 
Appeal^  post. 

(6)  Where  the  complainant  is  an  infant,  say,  "A.  B  an  infant  under  the 
age  of  twenty-one  years,  by  E,  F.  his  next  friend,  represents,  ^c." 

(c)  The  complainant  may  insert  as  many  defendants  in  his  Petition  as  he 
pleases,  though  they  claim  undc"  different  titles;  but  if  any  of  the  defend- 
ants disclaim,  the  complainant  will  be  decreed  to  pay  costs,  unlers  under 
special  circumstances.  Stat.  vol.  29,  p.  82,  J  9.  In  cases  where  it  may  be 
necessary  to  make  the  heirs  of  any  decedent  defendants,  and  the  names  of 
air,  or  part  of  them,  are  unknovvn,  and  the  complainant  annexes  to  his  peti- 
tion an  affidavit  of  his  want  of  knowledge  of  the  names  or  residence  of  such 
heirs,  proceedings  may  be  had  against  them,  without  naming  them,  and 
the  Court  will  make  such  order  in  relation  to  notice,  as  they  may  deem 
proper.  Stat.  vol.  29,  p.  82,  J  10.  The  affidavit  may  be  in  the  following 
form  :  "  The  nhove  named  A.  B.  makes  oath  and  says,  that  he  has  no  know- 
ledge of  the  names  or  residence  of  the  heirs  of  C.  D.  the  decedent  in  the  above 
Bill  named.  Sworn,  <S-c."  When  the  defendants  reside  in  several  Counties, 
or  when  any  or  all  of  them  are  non-residents  of  the  State,  it  must  be  so 
represented  in  the  Bill. 

(d)  The  term  Petitioners,  where  there  are  two  or  more  complainants, 
will  be  found  more  convenient  than  any  other  appellation.  Being  a  gene- 
i;ick  term,  it  embraces  all  sexes  and  conditions,  and  is  equally  descriptive 
with  the  cumbersome  title  of  *'orato)-s  and  oratrixes.'" 


CHANCERY.  257 


FORMS    OF    ORIGINAL    BILLS. 


about  the day  of A.  D. was  seized  in  fee  simple 

of  a  certain  tract  of  land,  situate  in  said  County  of and 

which  is  hereinafter  more  particularly  described  ;  and  the  said 
C.  D.  being  desirous  to  dispose  of  the  said  lands,  entered  into  an 
agreement  with  your  orator,  for  the  sale  thereof  to  him,  and  which 
agreement  was  reduced  to  writing  and  signed  by  the  said  C.  D. 
and  your  orator,  and  is  in  substance  as  follows,  [//ere  insert  the 
substance  of  the  agreement,  its  terms,  conditions,  the  description 
of  the  lands,  ^-c]  ;  a  copy  of  which  agreement  is  herewith  filed, 
and  made  part  of  this  Bill.  Your  orator  further  represents,  that 
he  has  in  all  respects  complied  with  the  terms  and  conditions  of 
the  said  agreement  on  his  part  to  be  performed,  and  that  he  has 
applied  to  the  said  C.  D.  and  requested  him  specifically  to  per- 
form his  part  of  the  said  agreement,  but  the  said  C.  D.  hath  hith- 
erto wholly  neglected  and  refused  so  to  do. 

Your  orator,  therefore,  prays  that  the  writ  of  subposna,  (a)  may 
issue  against  the  said  C.  D.  and  that  he  may  be  compelled  to  an- 
swer all  and  singular  the  premises  ;  \if  special  interrogatories  are 
to  he  put,  say,  "And  particularly  that  he  may  answer  and  say, 
whether,  &c."]  And  your  orator  further  prays,  that  on  the  final 
hearing  of  this  cause  the  said  C.  D.  may  be  decreed  specifically 
to  perform  his  said  agreement,  or  if  it  should  appear  that  he  is 
unable  so  to  do,  that  he  may  be  decreed  to  repay  to  your  orator 


(a)  In  cases  where  any  or  all  of  the  defendants  reside  out  of  the  Stale, 
the  complainant  may  cause  jjersonal  service  of  a  subpcrna,  with  a  copy  of 
the  petition  ;  or  he  may  cause  notice  of  the  pendency  of  tlie  petition,  con- 
taining a  summary  statement  of  the  object  and  prayer  thereof,  to  be  pub- 
lished six  consecutive  weeks,  in  some  newspaper  printed  in  the  County 
where  the  j)etition  is  filed,  if  there  be  any,  and  if  not.  in  some  newspaper 
printed  in  this  State,  of  general  circulation  in  the  Oounly  ;  and  in  cases 
where  the  title  to,  or  boundaries  of  land,  or  contracts  concerning  lands  or 
tenements,  are  drawn  in  question,  and  any  or  all  df  the  defendants  are  non- 
residents of  the  State,  suit  may  he  pro!^ccuted  in  any  County  where  the 
land  lies,  and  the  Court  will  direct  the  manner  of  giving  notice  to  the 
absent  defendants.  Stat.  vol.  13i),  p,  82,  J  7,  11.  In  such  cases,  tiie  prayer 
is  varied  from  the  above  form  so  as  to  correspond  with  the  facts.  It  may 
be  for  subpoena  alone;  or  for  a  sufipcrna  and  an  order  of  publication;  or  for  a 
«u6jj£Ena,  an  order  of  publication,  and  "  that  notice  may  be  given  in  6uch 
manner  as  the  Court  eltall  deem  proper." 

Hh 


258  CHANCERY. 


FORMS    OF    OlIIGINAL    BFLLS. 

his  purchase  money  aforesaid,  with  interest,  and  such  damages  as 
your  orator  may  have  sustained  by  reason  of  the  premises ;  (a) 
and  that  your  orator  may  have  such  other  and  further  relief  in 
the  premises,  as  equity  and  good  conscience  may  require. 


Z.  Z.   Sol.  for  Complt.  (b). 


No.  2.     Specific  Performaivce,  Vendek  against  Vendor  ; 
WHERE  A  Title  Bond  was  given,  and  the  Lands 

RESOLD  to  a  subsequent  PURCHASER  WITH  NOTICE. 

[Proceed  as  in  No.  1,  to  the  *  —  represents  that  C.  D.  of,  &c. 
(and  whom  your  orator  prays  may  be  made  defendant  to  this  Bill) 
on  or  about  the  first  day  of  May,  1830,  was  seized  in  fee  simple 

of  a  certain  tract  of  [and  situate  in  the  said  County  of and 

desribed  as  follows  :  [descriptian']  ;  and  the  said  C.  D.  being  de- 


(a)  AYhere  an  injunction  is  to  !)e  olitainod,  the  prayer  for  it  is  added  thus: 
•'And  your  orator  further  prays,  that  an  injunction  may  be  allowed  to  re- 
strain the  said  G.  D.  from  all  further  proceedings  upon  the  said  judT^ment, 
at  law,  or,  from  negotiating  said  promissory  note,  «St.c."  In  all  cases  of 
injuncti<in  an  affidavit  of  the  truth  of  the  bill  must  be  annexed  thereto, 
[Stat.  vol.  29,  p.  87.  89,  \  42.  50)  and  may  be  in  the  following  form  : 

FOUM    OF    AFFIDAVIT    FOR    INJUNCTION. 

The  State  of  Ohio, County,  ss. 

I,  A.  B.  being  duly  sworn,  depose  and  say,  that  all  the 
several  matters  and  things,  which  are  stated  in  the  foregoing  Bill,  as 
from  the  information  of  others,  I  believe  to  be  true;  and  that  all  the  several 
other  matters  and  things  therein  set  forth,  are  true  in  substance  and  in  fact. 

A.  B. 

SvForntOj  and  subscribed,  before  me,  this day  of — —  A.  D. 

T.  V.  Jus.  Peace,  or,  JIas'cr  in  Chy. 

[b)  In  England,  erery  bill,  whether  original  or  not,  or  whatever  may  be 
its  species,  must  have  the  signature  of  counsel  affixed  to  it.  The  juincipal 
object  of  this  precaution,  is  to  guard  against  Bills  containing  scandal  and 
impcrtinen.ce,  or  irrelevant  matter.  If  the  Bi!i  be  not  thus  signed  by  coun- 
sel, it  maybe  dismissed  on  demnrrer,  or  will  be  ordered  to  be  taken  off  the 
files  of  the  Court.  Coop.  Eq.  18.  5  Ves.  540.  Qyere,  as  to  this  rule  in 
Ohio. 


CHANCERY.  259 


FORMS    OP    OniOINAL    BILLS. 


sirous  to  dispose  of  the  said  premises  entered  into  a  contract  with 
your  orator  for  the  sale  thereof  to  him,  and  executed  to  your  ora- 
tor a  title  bond  therefor,  a  copy  of  which  is  herewith  filed  and 
made  part  of  this  Bill,  in  and  by  which  title  bond,  the  said  C.  D. 
bound  himself  under  a  penalty  of  two  thousand  dollars,  to  execute 
and  deliver  to  your  orator  a  good  and  sufficient  deed  of  general 
warranty,  for  the  said  lands,  on  or  before  the  first  day  of  May, 
^.  D.  1832,  provided  your  orator  should  pay  to  the  said  C.  D. 
thq  sum  of  five  hundred  dollars  on  or  before  the  first  day  of  May, 
A:  D.  1331,  and  the  further  sum  of  five  hundred  dollars,  on  or 
before  the  said  first  day  of  May,  A.  B.  1832.  Your  orator  fur- 
ther represents,  that  on  the  sixid  first  day  of  May,  A.  D.  1S31, 
your  orator  paid  to  the  said  C.  D.  the  said  first  mentioned  sum 
of  five  hundred  dollars,  which  was  received  by  the  said  C.  D. 
and  by  him  indorsed  upon  the  said  title  bond :  That  soon  after 
the  payment  of  the  said  sum  of  five  hundred  dollars,  the  said  C. 
D.  fraudulently,  and  without  the  knowledge "  or  assent  of  your 
orator,  sold  at  an  advanced  price,  and  by  deed  duly  executed,  con- 
veyed the  said  premises  to  one  E.  F.  of,  &:c.  (and  whom  your 
orator  prays  may  also  be  made  defendant  to  this  Bill) :  That,  as 
your  orator  is  informed  and  believes,  the  said  E.  F.  before  and 
at  the  time  of  his  contract  and  purchase  aforesaid,  had  notice  of 
the  right  and  title  of  your  orator  to  said  premises :  That  on  the 
said  first  day  of  May,  Jl.  D.  1832,  your  orator  offered  to  pay  to 
the  said  ■€.  D.  the  said  sum  of  five  hundred  dollars,  the  residue 
of  said  purchase  money,  and  in  a  friendly  manner  requested  the 
said  C.  D.  to  specifically  perform  his  said  contract,  and  execute 
to  your  orator,  a  deed  for  said  premises,  agreeably  to  the  terms 
thereof,  but  the  said  C.  D.  refused  to  accept  said  money,  and 
execute  such  deed.  [Ilere  add  such  other  charges  as  the  facts  loill 
warrant,  and  as  may  he  necessary  to  exhibit  a  full,  fair,  and  suc- 
cint  statement  of  the  complainanCs  c«se]  :  Your  orator  therefore 
prays,  &c.  [as  in  No.  1,  with  this  addition:  "That  the  said  E.  F. 
may  be  decreed  to  convey  the  said  premises  to  your  orator,  with 
all  proper  assurances,  your  orator  being  ready  and  willing,  and 
hereby  offering,  specifically  to  perform  his  part  of  the  said  con- 


2C0  CHANCERY. 


FORMS    OF    ORIGINAL    BILLS. 


tract ;  or  if  it  should  appear  that  the  said  E.  F.  is  a  bona  fide 
purchaser  without  notice  of  the  said  contract  between  your  orator 
and  the  said  C.  D.  that  then  the  said  C.  D.  may  account  for  and 
pay  to  your  orator,  the  difference  between  the  price  stipulated  in 
the  said  agreement  and  the  sum  for  which  he  sold  the  same  to  the 
said  E.  F."  or,  "that  the  said  C.  D.  may  be  decreed  to  refund  to 
to  your  orator,  the  said  sum  of  five  hundred  dollars,  with  the  in- 
terest thereon,  together  with  such  damages  as  your  orator  may 
have  sustained  by  reason  of  the  premises,"  with  a  prayer  for 
general  relief.     See,  notes  to  No.  1,  ante.  257,  258. 


No.  3.  Bill  of  Foreclosure. 

Proceed  as  in  No.  1.  to  the  *  —  represents  that  C.  D.  of,  &c. 
(and  whom  your  orator  prays  may  be  made  defendant  to  this  Bill) 
being  or  pretending  to  be  seized  in  fee  simple,  of  a  certain  tract 

of  land,  situate  in  said  County  of and  described  as  follows, 

l^Desa'iption']  and  the  said  C.  D.  being  in  want  of dollars  he 

did  in  or  about  the  month  of  A.  D. ^.pply  to  your  ora- 
tor to  lend  him  the  said  sum  of dollars  to  be  secured  by  a 

mortgage  upon  said  premises,  that  your  orator  did  loan  to  the  said 
C.  D  the  said  sum  of — dollars  and  thereupon  the  saidC.  D.  to  secure 
the  repayment  of  the  same  with  lawful  interest,  by  his  deed  duly 
executed  and  dated  on  or  about  the day  of A.  D. con- 
veyed the  same  premises  to  your  orator  in  fee  simple,  but  subject 
nevertheless  to  a  condition  of  defeasance   on  the  payment -of  the 

said  sum  of dollars  with  lawful  interest  on  the day  of 

thence  next  ensuing,  as  in  and  by  said  deed  of  mortgage,  a 

copy  of  which  is  herewith  filed  and  made  part  of  this  Bill,  will 
more  fully  appear. 

Your  orator  further  represents  that  neither  the  said  sum  of 

dollars  nor  any  part  thereof  was  paid  to  your  orator  at  the  time 
limited  in  that  behalf:  whereby  the  legal  estate  in  said  premises 
became  vested  in  your  orator,  redeemable  nevertheless  in  equity 
on  payment  of  the  principal  and  interest  due  and  to  become  due 
thereon:  That  the  said  sum  of dollars  principal  and  a  large 


CHANCERY.  201 


FORM    OF   ORIGINAL   BILLS. 


arrear  of  interest  thereon  being  due,  he  applied  to  the  said  C.  D. 
and  requested  him  to  pay  the  same  to  your  orator,  which  he  has 
hitherto  wholly  neglected  and  refused  to  do. 

Your  petitioner  tlierefore  prays,  that  the  writ  of  svhpcena  may 
issue  against  the  said  C.  D.  that  he  may  be  compelled  to  answer 
all  and  singular  the  premises,  that  an  account  may  be  taken  of 
what  is  due  to  your  orator  for  his  principal  and  interest  upon  said 
mortgage,  that  said  mortgaged  premises  may  be  sold  and  the  pro- 
ceeds thereof  applied  to  the  satisfaction  of  said  principal  and 
interest ;  (a)  and  that  your  orator  may  have  such  other  and  fur- 
ther relief  in  the  premises  as  equity  and  good  conscience  may  re- 
quire.    See,  notes  to  No.  1.  ante.  257,  258. 


{a)  In  1  Ohio  Rep.  235.  Ohio  Conds.  10!),  it  is  held  that  no  final  decree 
can  be  entered  on  a  Bill  to  foreclose  an  equity  of  redemption,  or  to  effect 
a  sale  of  mortg^aged  premises;  until  the  Court  shall  have  caused  an  appraise- 
ment to  be  made  agreeably  to  the  provision  of  the  act  regulating  judgments 
and  executions;  and  if  on  the  return  of  the  appraisement,  itsliall  appear  that 
the  premises  at  two  thirds  of  the  valuation,  do  not  exceed  the  sum  due  on 
the  mortgage,  the  Court  may  decree  a  foreclosure;  but  if  the  mortgaged 
premises,  estimated  at  two  thirds  of  the  appraisement,  shall  exceed  the 
amount  due  on  the  mortgage,  and  a  decree  shall  be  rendered  for  the  com- 
plainant, a  sale  shall  be  directed  on  the  principles  of  the  act  regulating 
judgfnents  and  executions.  Under  this  rule  it  was  doubted  whetker,  in 
most  cases,  two  interlocutory  decrees  were  not  necessary,  one,  for  an  ac- 
count BluA  valuation;  and  another,  for  a  sale  or  forexlusure  according  to  the 
amount  of  the  valuation  returned;  and  thus  in  most  cases  create  a  delay 
of  one  term,  for  the  purpose  of  making  a  valuation.  This  difficulty  was  re- 
moved by  the  rule  established  in  5  Ohio  Rep.  554,  wiiere  it  is  held  that 
the  complainant  may,  in  the  first  instance,  take  a  decree  )'or  an  account 
vahtation  a.nd  sale  ;  or  should  he  choose  to  foreclosure  the  equity  of  redemp- 
tion, if  practicable  under  rule  established  in  1  Ohio  Hep.  2d5.  above  cited, 
he  must  first  take  an  interlocutory  decree  for  an  account  and  valualion,  and 
run  the  risk  of  obtaining  a  tiecree  of  foreclosure  or  not,  according  as  the 
mortgaged  estate  at  two  thirds  of  the  valuation  shall  exceed  or  fall  short 
of  the  amount  due  upon  tlie  mortgage.  If  a  foreclosure  be  desired  tlie  pray- 
er may  be  thus  :  "that  the  mortgajrod  premises  may  be  appraised,  and  if 
the  same  at  two  thirds  of  the  vakiation  do  not  <'xceed  the  amount  of  said 
principal  and  interest,  that  then  tlie  Court  will  decree  that  the  said  C.  J). 
may  be  forever  barred  and  foreclosed  of  and  from  all  right  and  equity  of  re- 
demption of  in  and  to  the  said  mortgaged  premises;  or  if  the  said  mort- 
gaged premises  at  two  thirds  of  the  valuation  shall  exceed  the  amount  of  said 
principal  and  interes  that  them,  the  same  may  be  sold  and  the  procteda  ap- 
plied, &c.  [at  in  the  above  precedent]   See,  Decrees, poet,  No.  J. 


262  CHANCERY. 


Bill  or  Interpleader. 


This  Bill  is  exhibited  where  two  or  more  persons  claim  the 
same  debt  or  duty  from  the  complainant  by  different  or  separate 
interests,  and  he  not  knowing  to  which  of  the  claimants  he  ought 
to  render  it,  fears  that  he  may  be  damnified  by  the  claimants,  as 
by  paying  his  money  into  a  wrong  hand,  and  therefore  exhibits 
his  Bill  against  them,  praying  that  the  Court  may  judge  between 
them  to  whom  the  thing  belongs,  and  that  he  may  be  indemnified. 
Coop.  Eq.  45.  For  the  general  princif)lcs  governing  Bills  of  Inter- 
pleader, See,  2  Ves.  Jun.  394,  312.  9  lb.  384.  6  Johns.  Ch.  445. 
It  may  be  filed,  though  the  complamant  be  not  actually  sued,  oi- 
sued  by  one  only  of  the  conflicting  claimants.  2  Merrivale,  107. 
15  Ves.  244.    Q,  Johns.  Ch.  447. 


No.  5.     Bill  of  Interpleader. 

\_Proceed  as  in  No.  1,  to  the  *  —  represents  that  C.  D.  of,  &c. 
(and  whom  your  orator  prays  may  be  made  defendant  to  this  Bill) 
on  or  about  the  first  day  of  May,  A.  D.  1826,  executed  to  your 
orator  a  lease  for  the  term  of  ten  years  thence  next  ensuing,  upon 

certain  lands  situate  within  said  County  of and  described  as 

follows :  [descrijition']  ;  at  and  under  the  yearly  rent  of  one  hun- 
dred dollars,  payable  semi-annually,  a  copy  of  which  lease  is 
herewith  filed  and  made  part  of  this  Bill.  That  your  orator  took 
possession  of  said  premises  under  said  lease,  immediately  after 
the  execution  thereof,  and  still  continues  such  possession.  That 
on  or  about  the  first  day  of  July,  A.  D.  1828,  the  said  C.  D. 
mortgaged  the  same  premises  to  one  E.  F.  of,  &c.  (and  whom 
your  orator  prays  may  be  also  made  defendant  to  this  Bill)  to 
secure  the  payment  of  one  thousand  dollars,  with  interest  thereon, 
on  or  before  the  first  day  of  July,  A.  D.  1830.  That  there  is 
now  due  and  owing  from  your  orator,  the  sum  of  — —  dollars,  as 
for years  rent  of  the  said  premises,  accruing  since  the  exe- 
cution of  said  mortgage,  and  to  be  paid  by  youi'  orator  to  the 


CHANCERY.  263 


BILL   OP   INTERPLEADER. 

person  or  persons  entitled  to  receive  the  rents  and  profits  of  said 
premises,  and  your  orator  has  always  been  ready  and  willing  to 
pay  the  same,  and  is  now  ready  and  willing,  and  hereby  offers  to 
pay  the  same,  in  such  manner  and  to  such  person  or  persons  as 
this  Court  may  direct ;  and  your  orator  would  have  long  since 
paid  the  said  rent,  and  the  arrears  thereof,  had  there  been  any 
person  or  persons  to  whom  he  could  have  safely  paid  the  same ; 
and  your  orator  did  offer  to  pay  the  same  to  the  said  C.  D.  upon 
being  indemnified  by  the  said  C.  D.  for  so  doing,  but  the  said  C.  D. 
refused  to  give  any  such  indemnity.  That  the  said  C.  D.  and  E. 
F.  severally  set  up  claimi^  to  the  said  rents  and  profits,  and  each 
insists  upon  his  claims  thereto,  and  demands  the  payment  thereof 
froni  your  orator,  and  threaten  to  commence  several  actions  at 
law  against  your  orator,  for  the  recovery  thereof,  and  otherwise 
to  vex  and  harass  your  orator. 

Your  orator  therefore  prays,  that  writs  of  subpoena  may  issue 
against  the  said  C.  D.  and  E.  F.  that  they  may  severally  set  forth 
their  respective  claims  to  the  said  rent  and  arrears  of  rent,  and 
that  they  may  interplead  and  settle  and  adjust  their  claims  between 
themselves,  your  orator  being  ready  and  willing,  and  hereby  oflx3r- 
ing,  to  pay  the  said  rent  and  arrears  of  rent,  to  whomsoever  the 
same  shall  appear  to  belong,  being  indemnified,  and  that  your 
orator  may  be  at  liberty  to  bi'ing  the  same  into  this  Court,  which 
your  orator  hereby  ofllers  to  do,  and  that  the  said  C.  D.  and  E.  F. 
may  be  restrained  by  the  injunction  of  this  Court  from  all  proceed- 
ings at  law  against  your  orator  on  account  of  said  rent  and  arrears 
of  rent,  &c.  {^Add  a  prayer  for  general  relief  as  in  No.  1.] 

To  the  Bill  of  Interpleader,  the  complainant  must  always  annex 
an  affidavit  that  there  is  no  collusion  between  him  and  cither  of 
the  parties.    Coop.  Eq.  49. 

Form  of  AFFin.wiT  against  collvsion. 

A.  B.  the  above  named  complainant  makes  oath  and  says,  that 
he  docs  not  in  any  respect  collude  with  any  or  either  of  the  dc- 


«««  CHANCERY. 


BILX.  OP  INTEBFLEADER. 


fendants  above  named,  touching^  the  matters  set  forth  in  said  Bill, 
nor  is  he  in  any  manner  indemnified  by  any  or  either  of  the  de- 
fendants, nor  doth  he  exhibit  the  said  Bill  at  the  request,  or  with 
the  knowledge  of  any  or  either  of  them,  but  merely  of  his  own 
free  will,  and  to  avoid  being  sued  or  molested,  touching  the  mat- 
ters contained  in  his  said  BilL 

Sworn  toy  <fec 


CHANCERY.  265 


SIJBFGSNA. 

After  the  Bill  is  prepared,  it  is  taken  to  the  Clerk  of  the  proper 
Court,  who  enters  the  cause,  by  its  title,  upon  the  Appearnneo 
Docket,  and  endorses  upon  the  back  of  the  Bill  the  day  of  filing; 
the  Clerk  then  upon  the  app'ijation  of  the  conap'ainant  or  his  soli- 
citor, will  issue  a  subpceni,  which,  if  issued  in  vacation,  is  made 
returnable  at  the  nsxt  term,  or  if  issued  in  term  time,  may  be  made 
returnable  forthwith.  Skct.  vo!.  29.  p.  82.  §  0. 


Fonrj  or  a  suBPaxA. 

The  State  of  Ohio, County,  ss. 

To  the  Sheriff  or,  Coromr,  of County,  GnESTrja : 

We  command  you  that  you  summon  C.  D.  to  appear  bcfbro 
our  S'jLprzrm  Co'irl,  or,  Ci-irt  of  Co.nno^i  Plzxs    >    lie  County 

of at  the  Court  House,  on  the day  of instant,  or 

next  ensuing    (a)  to  answer  a  petition  in  Chancery  (b)  cxliibited 
against  him  by  A.  B.  and  this  he  shall  in  no  wise  omit,  under  the 


(f/)  Tliis  form  is  prefcrihpd  bySt:itntP.  Vol.  2\).  p.  S''- .  {  6.  It.  rut  vnt,  Imiw^ 
ever  in  all  c;isps  l>e  lilem/li/  fitilowed.  'I  Ik;  t'^ms  «.f  loarl  fur  tlic  cn^u- 
inir  year,  nre  estiililithod  nt  each  hp.'^sidn  o*  the  Lfgi>Ialiire  :  wlieii  1  herelnrp, 
n  IJili  is  fileil  in  tlie  winter  vacation,  before  flin  tfrnis  of  Court  are  e^^tal.- 
lislied,  it  is  iinp')-sil)le  to  make  the  si/')/J2/a  return  ible  on  a  d<tJ/  rerlnin 
To  avoid  tills  diffiuiilty,  the  .luhpcciin.  if  it^t-ued  in  llie  winter  vaca'ion,  is 
made  returnable  o  /  //ic  Jirs/  d  nj  nf  the  m-xl  lerm,  without  s|)ecifyin2  iiny 
piHcis^  d.iy.  In  .*oinc  counties,  it  is  the  common  pr.ictce  to  mnk.;  nil 
8  hp^Jinn,  wlilrh  lire  issm-d  in  v.i.-iilion,  rcliim^ihle  in  Ihi?  .-!ime  mnniuT, 
ami  to  mike  those  issued  in  term  time,  n.-ttirn  ible/.r/A/r/Z/i  witlioni  n  im. 
in^  !i  dill/  ri'ihiiii,  in  ;iny  ca>c.  (^ir,r.  as  lo  the  (diji-ct  of  llie  'Mhoii-md 
(ioll  ir  |)enilty"  in  the  above  (orm.  Wiil  an  aoliun  lie  Jor  it,  or  is  it  in  I  r 
rorc.m. 

[b)  In  Djwcr,  say, «  a  Poliiioa  hi  Dower." 

Il 


206  CHANCERY. 


STJBPOSNA. 


penalty  of  one  thousand  dollars ;  and  have  you  then  there  this 
writ,  (c) 

Witness  :  T.  T.  Chief  Judge  or,  President  Judge,  of  our  said 
Court,  at  the  Court  House,  this day  of A.  D.  

Attest. 

»  ^  T.  D.  Clerk,  of Sup.  Court,  or,  Coin.  Pleas. 

If  there  be  several  defendants,  who  reside  in  different  Counties, 
the  Clerk  of  the  Court  in  which  the  Bill  is  filed,  may  issue  subpoe- 
nas into  the  several  Counties,  in  which  such  defendants  are  sup- 
posed to  reside.  These  subpoenas  are  to  be  directed  to  the  proper 
officer  in  each  County,  and  are  served  and  returned  as  in  other 
cases.  If  any  or  all  of  the  defendants  reside  out  of  the  State  the 
complainant  may  cause  personal  service  of  a  subpoena,  with  a 
copy  of  the  Bill.  Stat.  vol.  29 J5.  82  §  7. 

The  subpoena  is  served  by  delivering  a  copy  thereof  to  the  de- 
fendant, or  leaving  a  copy  at  his  dwelling  house  or  usual  place  of 
abode:  and  the  officer  serving  the  same,  must  endorse  on  the  ori- 
ginal, the  time  and  manner  of  service ;  and  where  the  service  is 
made  out  of  the  State,  the  return  must  be  verified  by  oath  or  af- 
firmation.  Stat,  vol.  29,  p.  82,  §  8. 


(c)  \Miere  an  injunction  has  been  allowed  and  bail  given,  the  following 
endorsement  must  be  made  on  the  back  of  the  sifftpcewa," Injunction  allowed 
and  bail  given.         T.  D.  Clerk."     See,  Injunctions. 


(^HANCERY.  267 


NOTICE    BY    PUBLICATION. 

In  cases  where  the  title  to,  or  boundaries  of  land,  or  contracts 
concerning  lands  and  tenements,  are  drawn  in  question,  and  any  or 
all  of  the  defendants,  are  non-residents  of  the  State,  the  Bill  may- 
be filed  in  any  County  where  the  lands  lie,  and  the  Court  will 
direct  the  manner  of  giving  notice  to  the  defendants.  Stat.  vol.  29, 
j>.  82,  §  11.  By  the  7th  section  of  the  same  act  it  is  provided, 
that  where  any  or  all  of  the  defendants  reside  out  of  the  State, 
the  complainant  may  cause  personal  ser\ace  of  a  subpoena,  with  a 
copy  of  the  Bill;  or  he  may  cause  notice  of  the  pendency  of  the 
Bill,  containing  a  summary  statement  of  the  object  and  prayer 
thereof,  to  be  published  six  consecutive  weeks,  in  some  news- 
paper printed  in  the  County  W'here  the  Bill  is  filed,  if  there  be  any, 
and  if  not,  in  some  newspaper  printed  in  this  State,  of  general 
circulation  in  the  County.  From  these  two  provisions  it  seems  that 
the  Court  has  no  power  to  direct  the  manner  of  giving  notice, 
except  in  cases,  where  the  title  to,  or  boundaries  of  land,  or  con- 
tracts concerning  lands  or  tenements,  are  drawn  in  question;  and 
that  in  all  other  cases,  the  non-resident  must  be  personally  served 
with  a  subpcEna  and  copy  of  the  Bill,  or  notice  must  be  published 
for  six  weeks.  In  cases  of  the  latter  class,  the  Bill  may  be  filed 
at  any  time,  and  notice  by  publication  immediately  given,  without 
any  order  of  Court ;  and  where  six  weeks  intervene  between  the 
filing  of  the  Bill  and  the  next  term,  the  proof  of  the  publication 
may  be  made  at  the  first  term,  and  the  final  decree  taken  at  the 
.second  term.  The  form  of  notice  in  such  cases  may  be  as  fol- 
lows : 


Form  of  Notice,  without  an  OiiDnu  of  Court. 

C.  D.  and  E.  F.  are  hereby  notified,  that  on A.  B.  of,  (fee 

filed  in  the  Court  of  Common  Pleas  of  tiie  County  of and 

State  of  Ohio,  a  Bill  in  Chancery  against  the  said  C.  D.  and  E.  F. 


268  CHANCERY. 


NOTICE    BY    PUBLICATION. 

the  object  and  prayer  of  which  Bill  is,  [here  state  the  substance  of 
the  claim  and  of  the  prayer  of  the  BiW]  ;  and  the  sa'd  C.  D.  and 
E.  F.  are  further  notified,  that  unless  they  appear,  and  plead, 
answer,  or  demur  to  the  said  Bill,  within  sixty  days  after  the  next 
term  of  said  Court,  {a)  the  said  A.  B.  at  the  term  next  after  the 
expiration  of  said  sixty  days,  will  apply  to  sad  Court  to  take  the 
matters  of  the  Bill  as  confessed,  and  to  decree  thereon  accordingly. 

S.  T.  Sol  for  CompU. 

Dated,  &c. 


At  the  term  next  after  the  publication  of  notice,  a  copy  of  the 
notice  as  published,  is  produced  in  Court,  and  the  publication 
thereof  proved.  The  proof  is,  in  general,  made  by  the  affidavit 
of  the  printer  or  publisher  of  the  newspaper,  attached  to  a  copy 
Qf  the  notice. 


FoBM  OF  ArriDAViT  or  Flxlication- 

Fcrsonally  appeared,  in  open  Court,  T.  W.  and  made  solemn 
oath,  that  the  notice  hereto  attached,  was  published  for  six  con- 
secutive weeks  next  after in  a  newspaper  called and 

that  said  newspaper  was,  during  that  time,  (a)  printed  in  the 
County  of [the  County  in  which  the  bill  was  filed.'] 

T.  W. 

Attest 

F.  C.  Clerh 


(,i)  If  ilirrn  hn  not  six  wpcks  hctwpfn  the  'nVng  of  the  Bill,  nnd  tlie 
7.r;rM<  rn.  ti.e  (ii'i'iidiuits  iiui.-l  f(Mintifir«]  to  Mppear  at  llie  second  term, 
jiiiil  lilt'  fnriii  i.f  tlie  riMtice  mu-l  viry  accortlititrlv. 

(h)  if  rid  ii(nv,-.[)i|i  r  bo  priiut'd  iii  tlio  ('ourity,  thit  fict  must  bf«  stiterl 
in  tlif'  iiffiil  ivir,  a.-  well  as  tlie  fict,  that  tlio  riinvspaper  ii  vvliich  the  notice 
was  published,  was  in  general  circulation  in  tlie  Cjunty  where  the  Bill  was 
filed. 


CHANCERY.  269 

NOTICE    BY    PUBLICATION. 

This  affidavit  is  filed  with  llic  otlicr  papers  in  the  cause,  and 
the  fjllowing  entry  is  made  upon  the  journal : 


In  Chancery. 


This  day  came  the  complainant, 
and  proved  publication  of  notice,  and  thereupon,  on  his  motion, 
this  cause  is  continued. 


In  all  cases,  however,  where  the  title  to,  or  boundaries  of  land 
or  contracts  concerning  lands  or  tenements,  are  diawn  in  question, 
application  must  be  made  to  the  Court,  in  the  first  instance,  to 
direct  the  manner  of  giving  notice  to  the  absent  defendants.  The 
Court,  in  this  matter,  exercise  a  sound  discretion,  but  in  general 
order  the  complainant  to  give  notice  in  some  newspaper,  of  the 
pendency  of  the  suit,  and  of  the  substance  of  the  Bill,  smd  the 
prayer  thereof,  (a). 


Order  of  Counx  tor  publication  or  Notice. 


In^Chancery. 


On  motion  the  Court,  by  Mr.  N.' 
counsel  for  the  plaintiff,  it  is  ordered,  that  notice  of  the  pendency 
of  this  suit,  and  of  the  substance  of  the  Bill,  and  prayer  thereof, 


(d)  The  Cmirl  ilo  imt,,  in  llic  firt^t  iiista-co,  roquirc  proof  of  the  non- 
rcKitlonce  of  iht-  cli-roiKliiiits,  and  liie  order  for  i)uhliLulion  is  qnitc  ;i  in;ittcr 
of  course;  baton  the  final  hearing.j such  non-residence  must  be  established 
to  the  satisfaciion  of  the  Court. 


87»  CHANCERY. 

50TICE    BY    PUBWCATIOJf. 

be  published  for consecutive  weeks,  in newspaper,  pre- 
vious to  the  next  term  of  this  Court,  to  which  time  this  cause  is 
continued. 

Form  of  Notice  under  an  Order  of  Court. 

In  pursuance  of  an  order  of  the  Court  of  Common  Pleas  of  the 

County  of and  State  of  Ohio,  at  their term  A.  D. 

C.  D.  and  E.  F.  are  hereby  notified,  that  on A.  B.  of,  &c. 

filed,  in  said  Court,  a  Bill  in  Chancery,  against  the  said  C.  D.  and 
E.  F.  the  object  and  prayer  of  which  Bill  is,  [here  insert  the  sub- 
stance of  the  Bill  and  prayei-]  ;  and  the  said  C.  D.  and  E.  F.  are 
further  notified,  that  unless  they  appear  and  plead,  answer,  or 
demur  to  the  said  Bill,  within  sixty  days  after  the  next  term  of 
said  Court,  the  said  A.  B.  at  the  next  term  after  the  expiration  of 
said  sixty  days,  will  apply  to  said  Court  to  take  the  matters  of  the 
Bill  as  confessed,  and  to  decree  thereon  accordingly. 

S.  T.  Sol.  for  Complt. 
Dated,  &c. 

The  publication  of  this  notice  is  proved  at  the  following  term, 
by  affidavit  attached  to  a  copy  of  the  notice. 

Form  of  Affidavit  of  Publication. 

Personally  appeared,  in  open  Court,  T.  W.  and  made  solemn 
oath,  that  the  notice  hereto  attached,  was  published  for  six  con- 
secutive weeks  next  after  the day  of A.  D in 

newspaper. 

T.  W. 

Sworn  to,  <fec. 


CHANCERY.  271 


NOTICE    BY    PUBLIC ATIOIt. 


This  affidavit  is  filed  in  the  cau?e,  and  the  following  entry  made 
upon  the  journal. 


In  Chancery. 


This  day  came  the  complainant, 
and  proved  publication  of  notice,  as  herein  ordered  at  last  term  ; 
and  thereupon,  on  his  motion,  this  cause  is  continued  to  the  next 
term. 


272  CHANCERY. 


APPEARANCE    AND    DEFENCE. 


Upon  the  return  of  service  of  the  subpocnn,  or  upon  due  proof 
of  notice  having  been  given,  the  defendant  is  considered  in  Court, 
and  may  be  prf)ce(nied  against  accordingly.  The  de.'endnnt  is 
bound  to  file  his  plea,  answer,  or  demurrer,  within  sixty  days 
next  after  the  term  to  which  process  is  returned  "  Served,"  or  to 
which  the  defendant  has  been  notified  to  appear,  unless  the  Court 
allow  further  time ;  and  if  the  plea,  answer,  or  demurrer,  be  not 
thus  filed,  the  Court,  in  its  discretion,  may  render  a  decree  pro 
cnnfesso,  or  require  production  of  proof  from  the  complainant,  or 
examine  him  under  oath,  causing  such  examination  to  be  reduced 
to  writing,  and  filed  with  the  papers  in  the  cause,  and  thereupon 
render  such  final  decree  as  may  seem  just  and  equitable.  Slat.  vol. 
2:),  J).  82,  84,  §8,  17. 

These  statutory  provisions  arc  a  great  innovation  upon  the 
English  Chancery  practice.  The  Chancellor,  in  England,  can 
render  no  decree,  cither  pro  co7ifesso,  or  otherwise,  until  an  ap- 
psarancp,  is  effected  on  the  part  of  the  defendant.  Tliis  appearance 
consists  in  an  application,  by  the  de  cndant,  in  person,  or  by  his 
solicitor,  to  a  x"lerk  in  Court  to  appear  for  him,  who  thereupon 
has  recourse  to  a  certain  book,  called  the  General  Bill  Book,  in 
order  to  ascertain  the  name  of  the  complainant's  Clerk  in  Court; 
the  defendant's  Clerk  then  leaves  with  the  complainant's  Clerk, 
a  note  in  writing,  informing  the  latter  of  the  defendant's  appear- 
ance, which  !s  then  entered.  If  the  defendant  has  been  regularly 
served  with  a  subpcjena,  and  neglects  or  refuses  to  enter  his  ap- 
pearance, an  attachment  issues;  if  the  attachment  is  returned  noii 
est,  an  attachment  with  proclamations  is  issued,  and  then  a  com- 
mission of  rebellion,  a  sergeant  at  arms,  and  lastly,  a  sequestration. 
These  several  writs  must  in  general  be  resorted  to,  in  their  order, 
to  compel  the  appearance  of  the  defendant ;  but  if  he  still  stands 
out  all  process,  no  decree  can  be  taken  against  him.  As  at  com- 
mon law,  there  can  be  no  judgment  against  a  man  without  appear- 
ance, though  the  plaintiff  may  proceed  to  outlawry,  so  in  Chancery, 


CHANCERY.  278 


ihc  plainlifT  may  have  all  sorts  of  process  to  compel  an  appear- 
ance, but  williout  appcaranc'  there  can  be  no  decree.  13  Ves.  564. 
By  !St(it.  5  Geo.  II,  c.  2.3,  the  <  ourt  hi  certain  cr.ses,  are  autho- 
rized to  enter  an  ajrpcarancn  for  the  delendant,  and  then  proceed 
tjn  to  hnal  decree.  xSckt.  CIt.  2'S  The  same  object  iseHected  by 
our  slatute,  wliicli  niakcs  the  r^.turn  <jf  the  subpcxma  "served,"  or 
the  j;roof  of  ntitic;;.  an  app Mtrdiic:. 

Tlie  defendant  bi'ln.;-  thus  in  (^ourt,  he  is  to  consider  whether  he 
will  demur,  plead,  answer,  or  sutler  a  decree, /jro  confcsso,  to  pass 
ag-ainst  him. 

Kk 


%^  CHANCERY. 


DEMtRRERS. 


Demnrrers  are  general  or  special ;  general,  where  no  particular 
cause  is  alleged  ;  special,  where  the  particular  imperfection  is 
pointed  out.  The  former  may  be  resorted  to,  where  tlie  pleading 
is  dcfeciive  in  substance,  and  the  hotter,  where  the  ol)jcction  is  only 
to  the  ibrm  of  pleading.  Coop.  Eq.  118.  A  demurrer  is  the  alle- 
gation of  the  defendant,  which  admitting  the  matters  of  fact,  or 
some  of  then),  alleged  by  the  plaintiff  in  his  Bill,  to  be  true,  shows 
that  as  they  are  insufficient  for  him  to  proceed  upon,  or  to  oblige 
the  defendant  to  make  answer  unto,  or  that  for  some  reason  appa- 
rent on  the  face  of  the  Bill,  or  because  of  the  omission  of  some 
matter  which  ought  to  be  contained  therein,  or  for  want  of  some 
circumstance  that  ought  to  be  attendant  thereon,  the  defendant 
ought  not  to  be  compelled  to  answer.  Mit.  PL  99.  A  defendant 
may  demur  as  to  part  of  a  Bill,  plead  as  to  other  part,  and  answer 
the  residue.  As  a  demurrer  relies  upon  matter  apparent  on  the 
face  of  the  Bill,  so  much  of  the  Bill  as  the  demurrer  extends  to,  is 
to  be  taken  for  true.  1  Ves.  426.  An  argumentative  demurrer  is 
bad.  2  Fes.  83.  Har.  Ch  .  212.  A  defendant  cannot  demur  and 
plead,  or  demur  and  answer,  to  the  same  part  of  the  Bill  ;  for  the 
plea  or  answer  overrules  the  demurnu'.  3  F.  Wms.  80.  2  Jitli.  282. 
After  a  demurrer  to  the  whole  Bill  overruled,  the  defendant  by 
leave  of  the  Court,  may  put  in  a  demurnu-  less  extended.  Har. 
( li.  217.  If  the  defendant  demur  and  answer,  the  plaintiff  cannot 
proceed  on  the  answer,  until  t!ic  demuner  has  been  argued  or  dis- 
posed .  f,    Stat.  vo'.  20,  p.  Ci3,  §  19. 


No.   1.     For.ri  of  Ge^jsr.il  Dejiurrer  for  waxt  of  Equity. 

The  Demurrer  of  C.  D.  defendant,  to  the  Bill  of  A.  B.  complainant. 

And  the  said  C.  D.  comes  and  demurs  to  the  said  Bill  of 
the  said  A.  B.  and  for  cause  of  demurrer  shows,  *  that  the  said 


CHANCERY.  «7& 


DEMURRERS. 


A.  B.  by  his  said  Bill,  has  not  made  such  a  cise  as  entitles  him. 
in  a  Court  of  Equity  to  any  discovery  from  this  defendant,  or 
relief  against  him  :  Wherefore,  and  for  other  good  causes,  the 
said  C.  D.  demurs  to  said  Bill,  and  prays  the  judgment  of  this 
Court,  whether  he  shall  be  compelled  to  make  any  further  or 
other  answer  thereto,  and  that  he  may  be  dismissed  with  his  costs. 

By  T.  D.  his  Sol. 


Form  of  Joinder  in  Demurrer. 

And  the  said  A.  B.  says,  that  his  said  Bill,  and  the  matters 
therein  contained,  are  sufficient  to  entitle  him  to  the  discovery 
and  relief  prayed  for  in  said  Bill :  Wherfore,  he  prays  that  the 
demurrer  of  the  said  (1  D.  may  be  overruled,  and  that  the  dis- 
covery and  relief  prayed  for  in  said  Bill  may  be  granted  him,  &;c. 


By  W.  B.  his  Sol 


No.  2.     Form  of  Demurrer  for  want  of  Parties. 

[Proceed  as  in  No.  1,  to  the  '*  that  it  appears  by  the  said  com- 
plainants own  showing  in  said  Bill,  that  J.  S.  therein  named,  is  a 
necessary  party  to  the  same;  but  yet  the  said  A.  B.  hath  not  made 
the  said  J.  »S.  a  party  thereto :  Wherefore,  (Sec.  [Conclude  as  in 
No.  1.] 


No.  3.     Form  of  Demurrer  because  the  discovery  souout 

MAY    SUCJl.CT    THE    Di^.FE.\DA.\T    TO    A    Pl.NALTV. 

And  the  said  (■.  D.  comes,  and  as  to  such  parts  and  so  much 
of  the  said  Bill  as  seeks  to  have  a  discovery  from  this  defendant. 


«78  CHANCERY. 


PLEAS, 

A  plea  is  a  special  answer,  showing  or  relying  upon  one  or 
more  things  as  a  cause  why  the  suit  should  be  eitlicr  dismissed, 
delayed  or  barred.  Like  a  demurrer,  it  may  be  either  to  the  whole, 
or  to  any  part  of  the  Bi'l.  It  must  have  the  signature  of  counsel 
to  it,  and  if  it  is  a  plea  in  bar  of  matter  in  pais  it  must  be^upon 
the  oath  of  tlii;  defendant :  but  if  the  plea  is  to  the  jurisdiciti  )n  of 
the  Court,  or  in  disability  of  the  person  of  the  plaintiff,  or  IF  it  is 
a  plea  in  bar  of  matter  of  record  in  the  Court  itself,  or  in  any 
other  Court,  it  need  not  be  upon  oath.  Coop.  Ej.  228.  231.  If 
the  complainant  conceives  the  plea  to  be  good,  though  not  true, 
he  may  reply,  and  take  issue  upon  it,  and  proceed  as- in  case  of 
answer.  Stat.  vol.  29,  p.  85  §  18.  If  the  defendant  proves  the 
truth  of  the  matter  pleaded,  the  suit,  so  far  as  the  plea  extends,  is 
barred ;  even  though  the  plea  is  not  good  -cither  in  form  or  sub- 
stance. The  replication  is  an  admission  of  the  goodness  of  the 
plea,  and  its  truth  is  the  only  point  at  issue.  Mit.  PL  241.  4  P. 
Wrns.  94.  95.  New.  Ch.  45, 


Plea  of  the  Statute  of  Frauls  to  a  Parol  Agreement. 


The  Plea  of  C.  D.  defendant  to  the  Bill  of  A.  B.  complainant. 

And  the  said  C.  D.  comes  and  as  to  so  much  of  the  said 
Bill  as  seeks  to  compel  this  djfendmt,  to  exscjte  a  deed  of  the 
lands  and  tenements  in  the  said  Bill  mentioned,  or  any  of  them,  or 
any  part  thereof,  pursuant  to  the  i>retended  agreement  in  the  said 
Bill  mentioned,  and  as  to  any  relief  thereby  prayed  touching  such 
deed  and  agreement,  this  defendant  doth  plead  in  bar,  and  for  plea 
says,  that  neither  he,  this  defendant,  nor  any  person  by  him  law- 
fully authorized,  did  ever  make  or  sign  any  contract  or  agreement 
in  writing  for  making  or  executing  any  deed  or  other  instrument 
of  conveyance  to  the  said  A.  B.  of  the  said  premises,  or  any  of 


CHANCERY.  279 


them  or  any  part  thereof,  or  to  any  such  effect,  as  by  the  said  Bill 
i-s  suo"o-estecl,  or  any  memorandum  or  note  in  writing  of  any  agree- 
ment whatever,  for  or  concerning,  the  seUing  or  conveying  by  deed 
or  otherwise,  the  said  premises,  or  any  of  them,  or  any  part  there- 
of, to  tliG  said  A.  B.  and  therefore  this  defendant  doth  plead  the 
matter  a^ircsaid  in  bar,  to  so  much  and. such  parts  of  said  Bill  as 
seeks  to  compel  this  defendant  to  execute  a  deed  of  said  premises 
to  the  said  A.  B.  pursuant  to  the  said  pretended  agreement;  and 
also  as  to  any  an  J  all  relic:' thereby  prayed  touching  said  deed  and 
agreohrenl ;  and  prays  to  be  hence  dismissed  with  his  costs. 

■       J.  W.  So',  for  Deft. 
FoR?.i  07  Affidavit  of  th"  tkvtii  of  Plea. 

C.  D.  the   above  named   defendant  makes  oath  and  says,  that 
the  matters  and  things  set  forth  in  the  foregoing  plea  are  true. 

C.  D. 

Sworn,  &c. 

The  plea  is  filed  with  the  Clerk,  and  if  the  complainant  con- 
ceives the  plea  to  be  delective  either  in  iorm  or  substance,  he  must 
not  file  a  replicatiun,  but  t!~ie  cause  is  brought  to  a  hearing,  upon 
the  pica  aloue.  It  on  argument  tlie  plea  is  allowed,  the  suit  is  not 
t'.ercby  terminated,  icr  the  complainant  may  li'e  a  replication, 
and  take  issue  upon  the  facts  coniained  in  tiie  plea  ;  whereupon  the 
del'cndant  must  make  proof  of  the  truth  of  his  plea  by  depositions  as 
in  case  of  an  answer.  If  he  fails  in  tliat  j)roof,  s(j  tliat  at  the  hearing 
the  plea  is  held  to  be  no  bar,  the  c  )mp!ainant  is  not  to  lose  the  ben- 
efit ol  the  (hscovcrv  sought  by  the  bill ;  but  the  Court  will  order 
the  defendant  to  he  examined  upon  interrogatories.  New.  Cfi.  45. 
Mit.  PL  210,  241.  The  pica  is  sometimes  ordered  to  stand  for 
an  answer.  iYcw;.  Cli.  45.  After  a  replication  to  a  plea,  the  suf- 
ficiency of  the  plea  cannot  be  questioned.  If  it  is  proved  to  be 
true,  however  defective  either  in  form  or  substance,  the  suit  is  bar- 
red so  far  as  the  plea  extends.  3.  P.  Wms.  i)4,  95.  Mit.  PL  241^ 


«78  CHANCERY. 


PLEAS. 


A  ]j;ca  is  a  special  answer,  showing  or  relying  upon  one  or 
more  things  as  a  cause  why  the  suit  should  be  eltlicr  dismissed, 
delayed  or  barred.  Like  a  demurrer,  it  may  be  either  to  the  whole, 
or  to  any  part  oi"  the  Bill.  It  must  have  the  signature  of  counsel 
to  it,  and  if  il  is  a  plea  in  bar  of  matter  in  pais  it  must  be'upon 
the  oath  of  th;;  defendant:  but  if  the  plea  is  to  the  jurisdiati  ;n  of 
the  Court,  or  in  disability  of  the  person  of  the  plaintiff,  or  if  it  is 
a  plea  in  bar  of  matter  of  record  in  the  Court  itself,  or  in  any 
other  Court,  it  need  not  be  upon  oath.  Coop.  E].  228,  231,  If 
the  complainant  conceives  the  plea  to  be  good,  though  not  true, 
he  may  reply,  and  take  issue  upon  it,  and  proceed  as  in  case  of 
answer.  Stat.  voL  29,  p.  85  §  18,  If  the  defendant  proves  the 
truth  of  the  matter  pleaded,  the  suit,  so  far  as  the  plea  extends,  is 
barred  ;  even  though  the  plea  is  not  good  -cither  in  form  or  sub- 
stance. The  replication  is  an  aJmission  of  the  goodness  of  the 
plea,  and  its  truth  is  the  only  point  at  issue.  Mit.  PL  211,  4  P. 
TVms.  94.  95.  New.  Ch.  45.' 


Plea  of  the  Statute  of  Frauls  to  a  Parol  Agreement. 


The  Plea  of  C.  D.  defendant  to  the  Bill  of  A.  B.  complainant. 

And  the  said  C.  D.  comes  and  as  to  so  much  of  the  said 
Bill  as  seeks  to  compel  this  defend  mt,  to  execute  a  deed  of  the 
lands  and  tenements  in  the  said  Bill  mentioned,  or  any  of  them,  or 
any  part  thereof,  pursuant  to  the  ))retended  ngreement  in  the  said 
Bill  mentioned,  and  as  to  any  relief  thereby  prayc^d  touching  such 
deed  and  agreement,  this  defendant  doth  plead  in  bar,  and  for  plea 
says,  that  neither  he,  this  defendant,  nor  any  person  by  him  law- 
fully authorized,  did  ever  make  or  sign  any  contract  or  agreement 
in  writing  for  making  or  executing  any  deed  or  other  instrument 
of  conveyance  to  the   said  A.  B.  of  the  said  premises,  or  any  of 


CHANCERY.  279 


them  or  any  part  thereof,  or  to  any  such  effect,  as  by  the  said  Bill 
is  suggested,  or  any  memorandum  or  note  in  writing  of  any  agree- 
ment whatever,  for  or  concerning,  the  selling  or  conveying  by  deed 
or  otherwise,  the  said  premises,  or  any  of  them,  or  any  part  there- 
of, to  the  said  A.  B.  and  therefurc  this  defenJant  doth  plead  the 
matter  aforesaid  in  bar,  to  so  much  and  such  parts  of  said  Bill  as 
seeks  to  compel  this  dcfondaat  to  execute  a  deed  of  said  premises 
to  the  said  A.  B.  pursuant  to  the  said  pretended  agreement;  and 
also  as  to  any  and  ail  relic:"  thereby  prayed  touciiing  said  deed  and 
agreenTenl ;  and  prays  to  be  hence  dismissed  with  his  costs. 

J.  Vv'.  So',  for  Deft. 
FoK?.i  OP  Affidavit  of  th"  TRrrn  of  Plea. 

C.  D.  tiie   above  named  defendant  makes  oath  and  says,  that 
the  matters  and  things  set  forth  in  the  foregoing  plea  ai'e  true. 

C.  D. 

Sworn,  &c.    - 

The  plea  is  filed  with  the  C!crk,  and  if  the  complainant  con- 
ceives the  plea  to  be  de!ective  either  in  fi)im  or  substance,  he  must 
not  file  a  replicatiun,  but  tlie  cause  is  l)rought  to  a  hearing,  upon 
the  {)lca  aloiie.  I;  on  argument  the  plea  is  allowed,  the  suit  is  not 
t'..e)"cl)y  tenuinatcd,  icr  ihe  CwUi]  lainant  may  file  a  replication, 
and  take  issue  upon  the  facts  contained  in  the  plea  ;  whereupon  the 
defendant  must  make  proof  of  the  truth  of  his  plea  by  depositions  as 
in  case  of  an  answer.  If  he  fails  in  that  proof,  so  that  at  the  hearing 
the  plea  is  hekl  to  be  no  bar,  the  c :)nip!ainant  is  not  to  lose  the  ben- 
efit oi  the  (hscoverv  sought  by  the  bill ;  but  the  I  ourt  will  order 
the  defendant  to  be  examined  upon  interrogatories.  New.  Cli.  45. 
Mit.  PL  240,  241.  The  plea  is  sometimes  ordered  to  stand  for 
an  answer.  NevK  Cli.  45.  After  a  replication  to  a  plea,  the  suf- 
ficienaj  of  the  plea  cannot  be  questioned.  If  it  is  proved  to  be 
true,  however  defective  cither  in  form  or  substance,  the  suit  is  bar- 
red so  far  as  the  plea  extends.  3.  P.  ^Vms.  04,  95.  Mit.  PL  241_ 


280  CHANCERY. 


Ar.'SWET.. 


Tho  dofondant  in  his  answer,  is  boun:l  to  admit  or  deny  all  the 
fac'.s  stated  in  the  Bill,  with  all  their  material  circauistances,  with- 
out any  special  interrogatories  in  the  Bill  for  that  purpose.  Ho 
must  answer  specially,  to  the  speciiic  clrarii;es  in  the  Bill,,  and  a 
general  answer,  though  it  anuuuts  t j  a  fall  denial,  is  not  su  Iicient. 
1  Johns,  Ch.  103.  Mit.  Fl.  2115.  He  must  answer  directly  and 
precisely  to  every  material  allegation  in  the  Bill  and  not  by  way 
of  negative  pre^-nant.  The  changes  are  not  to  be  answ^ered  lilorallv: 
the  dex-ndant  must  confess  or  traverse  the  substance  of  each 
cliar^e  positively.  Ifa  lact  is  charged  to  be  witliin  the  d.fendant's 
knowledge,  he  must  answer  positively,  and  not  to  his  remem- 
brance or  belief;  and  as  to  facts  not  within  his  own  knowledge,  he 
must  answer  as  to  his  information  or  belief,  not  as  to  information 
or  hearsay,  without  stating  his  belief  one  way  or  the  other.  1 
Johns  Ch.  103.  3  lb.  247  2  Vcs,  Jun.  454.  But  when  o.  defen- 
dant answers,  that  he  has  not  any  knowledge  or  belief  of  a  fact 
charged  in  the  Bill,  he  is  not  bound  to  declare  his  belief  one  way 
or  the  other.    3  Jolins.    Ch.  297. 

The  answer  always  begins  with  its  title,  specifying  which  of 
the  defendants  it  is  the  answ^er  of,  and  the  names  of  the  plaintiffs 
in  the  cause  in  which  it  is  filed  as  an  answer.  Where  there  are 
several  defendants  they  should  answer  Jo/?i%,  unless  their  titles 
are  different.   Coop.  Eq.  322.  2  Ves.  Jun.  328. 

The  reservation   to  the    defendant  of  "all   and  all  manner    of 
benefit  of  exception,  &2."  is  unn^C33ar^^  R^dss.  Tr.  249.  Coop. 
Eq.  323. 

The  defendant  must  swear  or  affirm  to  his  answer,  before  a 
Judge,  Justice  of  the  Peace,  Master  Commissioner  m  Chancery, 
or  in  some  Court  of  Record  within  the  State.  Stal.  vol.  29,  p. 
85,  §  23. 

A  corporation  aggregate,  answer  under  their  comm Dn  seal,  and 
not  upon  oath;  bat  where  a  discovery  is  wanted,  it  is  usaal  to 
make  their  Clerk  a  party.    New.  Ch.  52. 


CHANCERY.  5&1 


ANSWER. 


The  answer  must,  in  general,  be  signed  by  the  defendant ; 
which  is  required,  to  identify  the  instrument  which  he  has 
sanctioned  by  his  oath,  and  more  particularly  for  the  purpose  of 
rendering  a  conviction  of  perjury  more  easy.     Ne.w,  Ch.  52. 

A  married  woman,  generally  defends  jointly  with  her  husband, 
but  if  she  claims  a  separate  interest  in  the  matter  in  question,  and 
in  some  few  other  cases,  she  may  defend  separately  from  her  hus- 
band by  an  order  of  Court  for  that  purpose.  Where  it  was  clear 
that  she  married  merely  to  defraud  creditors,  she  was  ordered  to 
defend  as  if  sole.  1  Dick.  410.  Coop.  Eq.  109. 

A  great  diversity  of  practice  prevails  in  this  State  in  relation  to 
infant  defendants.  In  some  of  the  circuits,  no  process  whatever 
is  served  upon  the  infant,  or  notice  given  to  its  relatives.  Some 
person,  generally  an  attorney  not  interested  in  the  cause,  is  ap- 
pointed guardian  ad  litan,  on  motion  of  the  complainant.  This 
guardian,  without  consulting  the  infant  or  relatives,  files  a  formal 
answer,  merely  alleging  his  ignorance  of  the  matters  in  contro- 
versy, any  very  frequently  without  oath.  No  further  attention  is 
given  to  his  trust  by  the  guardian,  and  a  decree  generally  passes 
sub  silcntio  against  the  infant.  In  other  circuits  a  greater  degree 
of  strictness  is  required,  but  there  seems  to  be  no  settled  uniform 
rule  upon  the  subject.  The  supreme  Court  in,  3  Ham.  302.  Ohio 
Conds.  608,  held  that  it  was  error  to  d(^crce  against  infant  defendants 
until  a  guardian  ad  litem  should  be  appointed,  accept  the  appoint- 
ment, and  either  appear  or  be  served  with  process.  In  England,  if  the 
infant  reside  within  twenty  miles  of  London,  the  guardian  is  ap- 
pointed by  the  Court ;  for  which  purpose  the  infant  and  the  per- 
son intended  to  be  appointed  guardian  personally  attend  in  Court 
when  such  person,  if  no  well  grounded  objection  is  made  to  him, 
is  appointed  guardian  to  the  infant  to  answer  and  defend  the  suit : 
if  the  infant  reside  above  twenty  miles  from  London,  the  guardian 
it  appointed  by  commission,  under  which  any  two  of  the  persons 
to  whom  the  commission  is  directed,  upon  having  the  infant  person- 
ally produced  before  them,  appoint  a  proper  person  to  be  iiis  guar- 
dian, which  appointment  they  certify  totiie  Chancellor.  New.  Ch. 
bl.  The  guardian  is  also  appointed  by  commission  when  the  in- 
fant is  out  of  the   Kingdom.    G  Mad.  28.     An  infant  defendant 

Ll 


282  CHANCERY. 


ANSWER. 


.abroad  cannot  have  a  guardian  assigned  to  put  in  his  answer  on 
motion,  but  a  commission  must  go.  1 1  Ves.  533.  The  testamen- 
tary guardian,  may  be  assigned  guardian  ad  litem  for  an  infant 
abroad,  to  answer  and  defend  the  suit.  Dick.  31.  It  may  per- 
haps be  questioned,  whether  this  practice  does  not,  to  some  ex- 
tent at  least,  form  a  part  of  "the  known  usages  of  Courts  of  Equi- 
ty" as  recognized  by  our  statute,  vol.  2i),  ^.81,  §  3. 


Words  of  course  preceedixg  an  answer. 

The  joint  answer  of  C.  D.  and  E.  F.  defendants  to  the  Bill  of 
A.  B.  complainant : 

The  said    C.  D.  and    E.  F.    now  come  and  for  answer  to  the 
said  Bill  of  the   said" A.  B.  say,  that,  &c.  [Here  insert  the  body  of 
the  answer-  and  conclude  thus :    And  the   said  C.  D.  and  E.  F 
deny  all  fraud  anclr  combination  wherewith  they  stand  charged  and 
pray  to  be  hence  dismissed  with  their  costs,  &c.  {a). 

CD. 
E.  F. 

T.  S.  Sol.  for  Defts. 


(a)  When  it  is  necessary  fiir  the  defendant  to  bring  a  ne»v  parfy  before 
the  Court,  he  may  state  it  in  his  answer,  an. I  insert  interrogitories  for  "him 
to  answer,  and  tliereupon  a  suhpcena  will  be  sent  out,  and  other  piocted- 
ings"  be  had,  as  in  case  ol   otlier  defendants. 

The  defendant  also,  a'ter  lie  has  tiled  his  answer,  mny  exhibit  interroga- 
tories to  the  coiiiplainaiit,  which  he  is  bound  to  answer  on  oiitii  or  affirma- 
tion, and  such  answer  is  received  as  evidence  in  the  case,  in  the  s-ime  man- 
ner and  to  the  same  cflect,  as  the  defendant's  answer  to  the  Bill;  and  if 
the  complainant  shall  not  answer  such  interrogatories  by  the  lime  ap- 
pointed by  the  Court,  he  will  be  considered  in  contempt,  and  his  Bill  may 
be  dismissed  with  costs.    Slat.  vol.  29.  p.  65,  86,  .\  27,  29. 


CHANCERY,  283 


ANSWER. 

The  like,  by  guardian  ad  litem. 

The  joint  answer  of  C.  D.  raid  E.  F.  infant  defendants  to  the 
Bill  of  A.  B.  complainant ;  by  X.  Y.  their  guardian  ad  litem. 

And  the  said  C.  P.  and  E.  F.  by  X.  Y.  their  guardian  ad  litem 
now  come  and  for  answer  to  the  said  Bill  of  the  said  A,  B.  say, 
that,  &c. 

C.  D. 
E.  F. 
T.  S.  Sol.  for  Defts. 

By  X.  Y.  their  guardian  ad  litem. 

Form  of  affidavit  to  truth  of  ajv'swer. 

The  State  of  Ohio  County,  ss. 

I,  C.  D.  being  duly  sworn,  de- 
pose and  say  that  all  the  several  matters  and  things  which  are 
stated  in  the  foregoing  answer  as  from  the  information  of  others, 
I  believe  to  be  true,  and  thai  all  the  several  other  matters  and 
things  therein  set  forth  are  true  in  substance  and  in  fact. 

C.  D. 

Sworn  to  and  subscribed  before  me  this day  of A.  D.  — 

T.  X.  Jus.  Peace,  or,  Master  in  Clnj.  ^-c. 

The  answer  is  filed  with  the  Clerk,  and  the  complainant  must  file 
exceptions,  or  a  replication  within  thirty  days  after  the  expiration 
of  the  time  limited  fur  filing  the  answer ;  otherwise  the  cause  will 
stand  for  hearing  on  Bill  and  Answer     Stat.  vol.  29,  p.  85,  §  22. 


284  CHANCERY. 


EXCEPTIONS    TO    ANSWER. 

If  the  defendant  does  not,  in  his  answer,  admit  or  deny  all  the 
material  facts  and  allegations  stated  in  the  Bill,  according  to  the 
best  of  his  knowledge,  remembrance,  inform.ation  and  belief,  the 
the  answer  is  said  to  be  insufficient  and  may  be  excepted  to  by 
the  comp-ainant  on  that  account.  3Iit.  Fl.  75.  1  Johns.  Ch.  76, 
4GG,  7.  3  Johns.  Ch.  297.  5  Johns.  Ch.  247.  2  Ves.  Jun.  454. 
As  a  general  rule,  exceptions  cannot  be  filed  after  a  replication; 
under  special  circumstances,  however,  the  Court  may  permit  the 
replication  to  be  withdrawn  and  the  exceptions  received.  Mit.  PI. 
75,  76. 


Form  of  Exceptions  to  Answer. 


A.  B.  ) 

vs.  >  In  Chancery. 

C.  D.  and  E.  F.  ) 

Exceptions  to  the  answer  put  in  by  the  defendants  to  the  Bil] 
of  the  complainant : 

1.  That  the  said  defendants  have  not  answered  and  set  forth, 
according  to  the  best  of  their  knowledge,  remembrance,  informa- 
tion, and  belief,  whether,  &c. 

2.  That  the  said  defendants  have  not,  in  manner  aforesaid,  an- 
swered and  set  forth,  whether,  &c. 

In  all  which  particulars,  the  complainant  insists,  that  the  said  an- 
swer of  the  said  defendants,  is  evasive,  imperfect,  and  insufficient, 
wherefore,  he  excepts  thereto,  and  prays  that  the  said  defendants 
may  be  compelled  to  amend  the  same  and  put  in  a  full  and  suffi- 
cient answer  to  the  said  Bill. 

By  S.  T.  his  Sol. 


CHANCERY.  28& 


EXCEPTIONS    TO    ANSWER. 


The  exceptions  are  filed  with  the  Clerk,  and  if  upon  the  hearing 
the  answer  is  adjudged  insufficient,  the  defendant  must  file  a  fur- 
ther answer  within  thirty  days  after  such  adjudication,  unless  the 
Court  allow  further  time,  and  on  failure  thereof,  the  bill  may  be 
taken  as  confessed.  The  second  answer  may  also  in  like  manner 
be  excepted  to,  and  if  found  insufficient,  the  defendant  will  be  de- 
creed to  pay  double  costs,  and  further  time  to  answer  will  not  be 
allowed,  but  a  decree  pro  confesso  may  be  taken,  as  if  no  answer 
had  been  filed.  If  the  exceptions  to  the  answer  be  overruled,  the 
complainant  will  be  decreed  to  pay  costs,  and  if  the  answer  be 
adjudged  insufficient,  the  defendant  will  be  decreed  to  pay  them. 
Stat,  vol  29,  p.  85,  §  23,  24,  25. 


286  CHANCERY. 


REPLICATION. 

When  the  parties  proceed  to  a  hearing  on  Bill  and  Answer  only, 
without  a  replication,  the  answer  will  be  taken  to  be  true  in  all 
points;  and  no  evidence  can  be  received  to  contradict  the  answer, 
except  matters  of  record,  to  which  the  answer  refers,  and  is  pro- 
vable by  such  record.  Stat.  vol.  29,/).  8G,  §  33.  The  Court,  how- 
ever, will  sometimes  permit  a  replication  to  be  filed,  after  the 
cause  is  called  for  a  hearing,  when  it  has  been  omitted  by  accident 
or  mistake.  When  by  mistake,  a  rephcation  has  not  been  filed, 
and  yet  witnesses  have  been  examined,  the  Court  has  permitted 
the  replication  to  be  filed  nunc  pro  tunc.  Mosely.  296.  Mit.  PL 
267.  It  was  formerly  the  practice  to  reply  specially  to  an  answer 
offering  new  matter.  This  led  to  a  rejoinder,  surrejoinder,  adsur- 
rejoinder,  &c.  &:c.  The  inconvenience,  delay,  and  unnecessary 
length  of  pleadings,  arising  from  these  various  allegations  on  each 
side,  occasioned  an  alteration  in  the  practice,  and  special  repHca- 
tions,  with  all  their  consequences,  are  now  out  of  use.  Mit.  PL 
256.    Prac.  Reg.  215. 

Form  of  General  Replication. 

A.  B.  J 

vs.  >  In  Chancei-y. 

C.  D.  and  E.  F.  ) 

And  the  said  A.  B.  comes 
and  says  that  the  matters  and  things  set  forth  in  his  said  Bill  of 
complaint,  are  true,  in  substance  and  in  matter  of  fact,  and  that 
the  matters  and  things  set  forth  in  the  answer  of  the  said  C.  D. 
and  E,  F.  contrary  thereto,  are  untrue ;  and  this  he  is  ready  to 
make  appear,  as  by  this  Court  shall  be  directed. 

By  T.  D.  his  SoL 

The  Replication  is  filed  with  the  Clerk,  and  the  cause  thus 
stands  at  issue  without  a  rejoinder.     Stat.  vol.  29,  p.  86,  §  34. 


CHANCERY.  ^^37 


EXAMINATION    OF    WITNESSES    AND    PROCEEDINGS    PREPARATOKY    TO 

A    HEARING. 

The  English  practice  in  relation  to  the  examination  of  witnesses, 
and  the  preparation  of  the  cause  for  a  hearing,  is  almost  entirely 
abolished  by  our  Statutes  and  Rules  of  Court.  In  England,  as  a 
general  rule,  no  testimony  can  be  taken,  until  the  defendant  has 
appeared  to  rejoin  gralis,  or  until  the  return  of  a  subpoena  to 
rejoin,  and  service  on  the  defendant  or  his  Clerk  in  Court;  or,  in 
other  words,  until  the  cause  is  regularly  at  issue.  The  cause 
being  thus  at  issue,  the  witnesses,  if  they  reside  within  twenty 
miles  of  London,  are  examined  at  the  examiners  office  in  London; 
if  they  reside  more  than  twenty  miles  from  I^ondon,  they  are 
examined  under  a  commission  in  the  nature  of  a  dedimus  potesta- 
tem.  All  witnesses  are  examined  upon  special  interrogatories, 
framed  and  drawn  up  by  the  counsel  of  the  respective  parties, 
and  annexed  to  the  commission.  The  depositions  are  reduced  to 
writing,  by  the  examiner  or  commissioners,  and  are  not  to  be  dis- 
closed by  any  of  the  persons  before  whom  they  were  taken,  or  by 
their  Clerks,  but  are  to  be  closely  kept  by  the  examiner,  or  com- 
missioner, until  publication  passes,  when  the  depositions  may  be 
opened,,  and  copies  given  to  the  parties.  As  a  general  rule,  no 
depositions  can  be  taken  after  publication  passes,  but  the  cause  is 
set  down  forthwith  for  a  hearing.  The  cause  is  set  doiim  for  a 
hearing,  by  entering  it  upon  a  kind  of  docket,  called  the  cause- 
book,  :uid  giving  notice  thereof  to  the  adverse  party.  The  cause 
being  thus  set  down  for  a  hearing,  a  suhpa;na  to  hear  judgment 
and  hearing,  is  issued,  and  served  upon  the  opposite  party,  and 
then  tlie  cause  is  taken  up  in  its  course,  argued,  and  disposed  of 
Hind.  '105.  1  Turn.  Cfi.  92,  93.  Mit.  PL  M9,  150.  The  prac- 
tice in  Oliio,  in  all  these  particulars,  is  essentially  different.  De- 
positions of  witnesses,  may  be  taken,"  in  any  part  of  the  United 
States,  or  territories  thereof,  at  any  time  after  the  commencement 
of  the  suit,  by  giving  the  proper  notice  to  the  adverse  party.  (See, 
Depositions.)  As  a  general  rule,  however,  depositions  ought  not 
to  be  taken  until  after  the  cause  is  at  issue ;  for  until  that  time,  it 


288  CHANCERY. 

cannot  in  general  be  known,  what  particular  facts  will  be  disputed 
or  denied.  Cases,  however,  not  unfrequently  occur,  when  it  is 
highly  convenient  to  take  depositions  at  an  early  stage  of  the 
proceedings,  and  this  course  is  clearly  warranted,  by  constant 
practice,  as  well  as  by  statute.  Stat.  vol.  29,  p.  124,  §  1.  If  de- 
positions thus  takeuj  should  be  found  on  the  final  hearing,  to  be 
irrelevant  or  immaterial,  the  Court  will  exercise  a  discretion  in 
decreeing  the  costs  of  them  against  the  party  taking  them.  All 
depositions  are  to  be  filed  with  the  Clerk,  and  may  be  opened  by 
him,  at  the  request  of  either  party,  or  his  counsel.  Rules  of  Prac- 
tice for  the  Circuit,  adopted  1823,  No.  4.  Ohio  Conds.  3.  A 
witness  may  be  examined  viva  voce,  at  the  hearing,  for  a  particu- 
lar purpose,  as  to  prov-e  exhibits,  &c.  (1  Johns.  Ch.  559)  but,  in 
general,  all  the  proof  in  Chancery  cases,  should  be  reduced  to 
writing,  and  is  properly  taken  before  a  Master  in  Chancery, 
though  it  may  be  taken  in  the  same  manner  as  depositions  in  cases 
at  law. 


BILLS    TO    PERPETUATE    TESTIMONY. 

The  mode  of  proceeding  upon  bills  to  perpetuate  testimony,  is 
particularly  pointed  out  by  statute.  Vol.  29,  p.  91,  §  03,  04,  05, 
00,  07.  It  is,  however,  a  remedy  not  often  resorted  to,  especially 
as  the  act  providing  a  mode  for  perpetuating  testimony  in  certain 
cases  {vol.  29,  p.  127)  affords,  in  general,  adequate  relief  in  a  more 
simple  and  expeditious  manner. 


CHANCERY.  «80 


BILLS    OF    DISCOVERT. 

This  Bill  is  commonly  used  in  aid  of  the  jurisdiction  of  other 
Courts,  as  to  enable  the  plaintiff  to  prosecute  or  defend  an  action 
at  law,  or  any  other  legal  proceeding  of  a  nature  merely  civil, 
before  a  jurisdiction  which  cannot  compel  the  production  of  deeds, 
&c.  or  any  discovery  on  oath,  from  the  defendant  himself    1  Ves. 
205.     It  may  be  brought  to  aid  the  jurisdiction  of  a  foreign  Court. 
Mit.  PL  150,  note  (s).     The  Bill  must  state  the  matters  concern- 
ing which  a  discovery  is  sought,  the  interest  of  the  several  parties 
in  the  subject,  and  tf.e  plaintiff's  right  to  the  discovery  wanted. 
An  affidavit  is  required  to  be  annexed  to  the  Bill,  only  where  it 
prays,  in  addition  to  the  discovery,  such  relief  as  the  plaintiff 
would  be  entitled  to  at  law,  if  the  deeds  and  writings  were  in  his 
possession.    3  ^Qtk.  132.   Coop.  Eq.  60.     But  a  Bill  for  a  discovery 
merely,  or  which  only  prays  the  delivery  of  deeds  or  writings, 
does  not  require  an  affidavit.    2  P.  Wms,A^\.    Coop.  Eq.  60.    4 
Johns.  Ch.  294.     By  Statute,  vol.  29,  p.  75,  §  97,  the  Supreme 
Court  and  Court  of  Common  Pleas,  in  trials  of  actions  at  law, 
are  authorized,  on  motion,  and  on  ten  days  notice  thereof,  to  re- 
quire the  parties  to  produce  books  and  writings  in  their  possession 
or  power,  which  contain  evidence  pertinent  to  the  issue,  in  cases, 
and  under  circumstances,  where  they  might  be  compelled  to  pro- 
duce the  same  by  the  ordinary  rules  of  proceeding  in  Chancery; 
and  if  a  plaintiff  fails  to  comply  with  such  order,  he  may  be  non- 
suited, or  if  a  defendant  fails  to  comply,  judgment  may  be  rendered 
against  him  by  default.     This  provision  has,  in  a  great  measure, 
superseded  the  use  of  Bills  of  discovery  to  enforce  the  delivery 
of  deeds  and  other  papers.     The  most  frequent  use  of  a  Bill  of 
discovery,  in  this  State,  is  in  aid  of  the  jurisdiction  of  a  Court  of 
law.     Such  Bill,  it  seems,  may  be  filed,  before  the  action  at  law 
is  commenced,  or  pending  such  action,  but  after  a  verdict,  the 
party  comes  too  late  for  a  discovery.    1  Vem.  176.    Mit.  PL  151, 
3  Johns.  Ch.  351.     If  a  Bill  seeks  discovery  in  aid  of  the  juris- 
diction of  a  Court  of  law,  it  must  appear  that  such  aid  is  clearly 
necessary,  and  the  discovery  material ;  for  where  the  facts  depend 

Mm 


290  CHANCERY. 


BILLS    OF    DISCOVERY. 

on  the  testimony  of  witnesses,  and  the  Court  of  law  can  compel 
their  attendance,  Chancery  will  not  interfere.  1  Ath.  388.  1 
Ves.  205.  2  Ves.  451.  1  Johns.  Ch.  543.  The  Bill  is  most  com- 
monly filed  by  a  defendant,  in  an  action  at  law,  and  an  injunction 
is  usually  prayed  for,  to  stay  all  proceedings,  until  answer.  In 
such  case,  the  Bill  must  charge  certain  facts  to  be  within  the 
knowledge  of  the  defendant,  and  that  a  disclosure  from  him  is 
necessary  ;  and  the  Bill  or  affidavit,  to  support  the  injunction, 
must  state  the  belief  of  the  plaintiff,  that  the  answer  would  fur- 
nish discovery  material  to  the  defence,  and  that  the  plaintiff  has 
not  the  means  of  obtaining  the  facts,  without  such  discovery.  1 
Johns.  Ch.  409.  19  Ves.  223.  2  Munf.  290.  But  it  seems,  that 
when  the  Bill  is  for  discovery  merely,  and  no  injunction  asked  for, 
and  there  is  a  demurrer  to  the  Bill,  the  Court  will  not  examine  so 
nicely  as  to  the  materiality  of  the  discovery.  ^  Johns.  Ch.  409. 
In  such  case,  whether  the  discovery  b3  material  or  not,  is  chiefly 
for  the  plaintiff  to  judge,  for  he  must  pay  the  costs  of  the  applica- 
tion. 1  Bro.  C.  C.  69.  In  a  Bill  for  discovery  merely,  there  is, 
of  course,  no  decree,  except  for  costs,  which  are  always  to  be  paid 
by  the  complainant.  Mit.  PI.  1G3.  The  defendant  is  compelled 
to  answer,  and  the  answer  may  be  excepted  to,  in  the  same  man- 
ner as  in  cases  of  Bills  for  relief.  See,  Exceptions  to  Answer, 
ante.  284.  Under  circumstances,  the  Court  will  give  leave  to 
convert  a  Bill  of  Discovery  into  a  Bill  for  relief.  2  Russ.  561. 
There  is  no  instance  of  a  Bill  of  Discovery  being  allowed  to  be 
amended  by  adding  parties  as  plaintiffs.  2  Mer.  74.  Under  cer- 
tain circumstances,  the  Court,  on  Bill  of  discovery,  will  direct  a 
search  to  be  made  in  boxes  of  an  absent  party,  in  the  hands  of  a 
defendant  as  depositary.    2  Prica.  177.     2  Price.  48. 

The  formal  parts  of  a  Bill  of  discovery  are  substantially  the 
same,  as  in  cases  of  bills  for  relief,  except  the  prayer  for  relief  is 
entirely  omitted.    See,  Forms  of  Original  Bills,  ante.  256. 

The  Bill  is  filed  with  the  Clerk,  and  process  issues  as  in  cases 
of  Bills  for  relief.    See,  ante.  p.2G5. 


CHANCERY.  201 


SUPPLEMENTAL    BILLS. 

This  species  of  Bill  is  generally  filed  for  the  purpose  of  bringing 
before  the  Court  some  event  which  hiis  happened  subsequent  to 
the  filing  of  the  orignal  bill,  and  before  decree.  It  is  also  some- 
times filed  for  the  purpose  of  stating  events  which  have  happened 
subsequent  to  the  decree.  5  Ves.  737.  Coop.  Eq.  74.  A  sup- 
plemental bill  must  state  the  original  bill  and  proceedings  thereon; 
and  if  the  supplemental  bill  is  occasioned  by  an  event  subsequent 
to  the  original  bill,  it  must  state  that  event,  and  the  consequent 
alterations  with  respect  to  the  parties  ;  and,  in  general,  the  supple- 
mental bill  nuist  pray,  that  all  the  defendants  may  appear  and 
answer  the  charges  it  contains.  Where,  however,  a  supplemental 
bill  is  merely  for  the  })urpose  oi'  bringing  ibrmal  parties  before 
the  Court  as  defendants,  the  defendants  to  the  original  bill  need 
not,  in  any  case,  be  made  parties  to  the  supplemental  bill.  Coop. 
Eq.  83,  84. 


Form  of  Supplemental  Bill. 

To  the  Court  of  Common  Tleas  within  and  for  tiie  County  of 
and  State  of  Oliin,  in  Chancery  sitting  : 

A.  B.  of,  &:c,  represents,  that  on  your  orator  exhibited 

his  original  bill  of  comi)laiut  in  this  Court  against  C  D.  tiiereby 
j)rayiiig  that  the  said  (/.  J3.  might  be  decreed  specifically  to  per- 
forin his  agrc.H^mcnt  with  yoiu-  orator,  tou(;hing  the  sale  of  the  farm 
and  premises  in  the  said  bill  mentioned,  and  to  make,  execute, 
and  deliver  to  your  orator,  a  deeil  therefor,  your  orator  being 
rea(l\'  and  willing  to  do  every  thing  on  his  part  recjuired  to  be 
performed,  in  pursuance  of  said  agreement.  Your  orator  further 
re})resents,  that  the  said  C.  \).  a})peared  and  put  in  his  answer 
to  the  said  original  bill,  as  hy  the  said  original  bill  and  answer, 
now  remaining  in  this  Court,  will  mure  fully  ai)pcar. 


292  CHANCERY. 


SUPPLEMENTAL    BILLS. 


Your  orator  further  represents,  that  since  the  fihng  of  said 
original  bill,  the  said  C.  D.  hath  caused  an  action  of  ejectment  to 
be  commenced  upon  the  law  side  of  this  Court,  for  the  purpose 
of  ejecting  and  turning  your  orator  out  of  possession  of  the  said 
farm  and  premises;  which  said  action  of  ejectment  is  still  pending: 
That,  your  orator  has  requested  the  said  C.  D.  to  desist  from 
proceeding  in  the  said  action  of  ejectment,  but  the  said  C.  D.  re- 
fuses so  to  do,  and  still  continues  the  prosecution  thereof. 

Your  orator  therefore  prays,  that  a  writ  of  subpasna  may  be 
issued  against  the  said  C.  D.  that  he  may  be  compelled  to  answer 
all  and  singular  the  premises ;  that  he  may  be  restrained  by  the 
injunction  of  this  Court,  from  proceeding  in  the  said  action  of 
ejectment,  and  also  from  commencing  any  other  action  or  pro- 
ceeding at  law  for  the  purpose  of  turning  your  orator  out  of  the 
possession  of  the  said  farm  and  premises;  and  that  your  orator 
may  have  such  other  and  further  relief  in  the  premises,  &c. 

S.  T.  Sol.  for  Complt. 

This  bill  must  be  sworn  to,  as  in  other  cases  of  injunctions ; 
(See,  Injunctions)  and  is  then  filed  with  the  Clerk,  who  issues 
process,  ^^c.  as  in  other  cases. 


CHANCERY.  293 


BILLS    OF    REVIVOR. 

A  bill  of  revivor  must  state  the  original  bill,  or  rather  who  were 
the  plaintiffs  and  defendants  to  it,  and  what  its  prayer  or  object 
was,  and  the  several  proceedings  thereon,  and  the  abatement. 
It  is  then  necessary  to  state  so  much  new  matter,  and  no  more, 
as  is  requisite  to  show  how  the  party  becomes  entitled  to  revive, 
and  charge  that  the  cause  ought  to  be  revived,  and  stand  in  the 
same  condition,  with  respect  to  the  parties  to  the  original  bill,  as 
at  the  time  the  abatement  happened  ;  and  it  must  pray  that  the 
suit  may  be  revived  accordingly.     Coop.  Eq.  69,  70. 


Bill  of  Revivor  upoiv  the  death  or  Plaintiff. 

To  the  Court  of  Common  Pleas  within  and  for  the  County  of 

and  State  of  Ohio,  in  Chancery  sitting : 

A.  B.  of,  &c.  represents,  that  on  or  about one  C.  D.  late 

of,  &c.  but  now  deceased,  exhibited  his  original  bill  of  complaint 
in  this  Court  against  E.  F.  as  defendant  thereto,  stating  as  therein 
is  stated,  and  praying  that,  &c.  \^Insert  the  substance  of  the  prayer 
of  the  original  MIL]  That  the  said  E.  F.  appeared  and  put  in  his 
answer  to  the  said  bill,  to  which  the  said  C.  D.  put  m  his  replica- 
tion, and  afterwards  depositions  in  said  cause  were  taken  by  both 
parties.  That  afterwards  the  said  cause  was  referred  to  the  master 
commissioner  of  this  Court  to  report  generally  thereupon,  and  that 
some  proceedings  have  been  had  before  the  said  master,  but  no 
report  has  yet  been  made  in  said  cause;  and  that  the  said  C.  D. 

on  or  about departed  this  life  intestate ;  that  your  orator 

has  been  duly  appointed  his  administrator,  and  has  thereby  be- 
come his  legal  representative  ;  that  the  said  suit  and  proceedings 
having  become  abated  by  the  death  of  the  said  C.  D.  your  orator 
is,  as  he  is  advised,  entitled,  as  the  personal  representative  of  the 
said  C.  D.  to  have  the  said  suit  and  proceedings  revived  against 


ii94  CIIANCEllY. 


BILLS    OF    KEVIVOR. 

the  said  E.  F.  and  to  liavc  the  said  cause  in  the  same  state  and 
condition  as  the  same  was  in  at  the  time  of  the  death  of  the  said 
C.  D. 

Your  orator  therefore  prays,  that  a  writ  of  subpoena  may  be 
issued  against  the  said  E.  F,  and  that  he  may  answer  all  and  sin- 
gular the  premises ;  and  that  the  said  suit  and  proceedings,  may 
stand  revived,  and  be  in  the  same  condition  as  the  same  were  in 
at  the  time  of  the  death  of  the  said  C.  D.  or  that  the  said  E.  F. 
may  show  good  cause  to  the  contrary,  &lc. 

By  T.  D.  his  Sol. 

The  bill  is  filed  with  the  Clerk,  who  issues  process,  &c.  as  in 
cases  of  original  bills. 

In  England,  it  is  usual,  after  appearance,  to  apply  to  the  Court 
for  an  express  order  to  revive  the  proceedings,  but  under  our 
statute,  such  an  order  seems  unnecessary,  and  it  is  rarely,  if  ever, 
applied  for.  Upon  the  return  of  process  "served,"  or  upon  proof 
of  publication,  the  party  is  considered  in  Court,  and  the  cause 
proceeds  on  to  a  final  hearing,  as  if  no  abatement  had  taken  place. 


Bill  of  Revivor  upon  death  of  Defendant. 

To  the  Court  of  Common  Pleas,  within  and  for  the  County  of 

and  State  of  Ohio,  in  Chancery  sitting : 

A.  B.  of,  &c.  represents,  that  on  or  about your  orator  ex- 
hibited his  original  bill  of  complamt  in  this  Court,  against  C.  D. 
stating  as  therein  is  stated,  and  praying,  that,  &c.  [/iere  insert  the 
substance  of  the  pirajer  of  the  original  biW]  ;  that  the  said  C.  D. 
was  duly  served  with  process,  but  departed  this  life,  intestate,  not 
having  put  in  his  answer  to  the  said  bill,  and  leaving  E.  F.  and 
G.  H.  his  heirs  at  law,  and  who  have  l^een  duly  appointed  his  ad- 
ministrators ;  that  the  said  suit  and  proceedings  having  become 
abated  by  the  death  of  said  C.  D.  your  orator  is,  as  lie  is  advised. 


CHANCERY.  29o 


BILLS    OF    REVIVOK. 

entitled  to  have  the  said  suit  and  proceedings  revived  against  tiic 
said  E.  F.  and  G.  H.  as  the  legal  representatives  of  the  said  C.  D. 
and  to  have  the  said  cause  put  in  the  same  condition  as  the  samo 
was  in  at  the  time  of  the  abatement  thereof. 

Your  orator  therefore  prays,  &c.  '[Conclude  as  in  the  last  jpre- 
cedcnt.'] 

The  method  of  reviving  by  bill,  in  case  of  the  death  of  the  par- 
ties is  now  rendered  unnecessary  by  the  Statute  of  1831,  as  to  all 
cases  commenced  since  the  passage  of  that  act.  By  the  provisions 
of  this  Statute  upon  tlie  death  of  either  of  the  parties,  the  executor, 
administrator,  heir,  legatee  or  devisee,  of  the  decedent  is  authorized 
to  make  himself  a  party  to  the  proceedings,  upon  motion  ;  and  if 
he  neglects  or  refuses  so  to  do,  the  Court  will  order  a  citation  to 
issue,  returnable  at  the  next  term  ;  and  if  the  citation  be  disreirard- 
ed,  the  C'ourt  \vill  proceed  in  the  same  manner,  as  upon  default,  in 
case  of  a  bill  of  revivor,  ^tat.  vol.  29,  j).  91,  §  52.  p.  10,  11,^ 
64,  05,  G(>,  (57,  08,  71,  72.  The  citation  may  issue  at  the  term 
next  succeeding  the  death  of  the  parly,  and  is  granted,  as  a  matter 
of  course,  upon  motion.  Stat.  vol.  29,  ;;.  70,  §  (>(>.  "\Yhen  the  rep- 
resentative of  the  deceased  party  appears  voluntarily,  the  entry 
on  the  journal  may  be  thus. 


Suggestion  of  pfatii,  and  Representative  made  Party. 

A.  B.    \ 

vs.        >  In  Chancery. 
C.  D.    \ 

The  death  of  C.  1).  L)cing  this 
day  suggested  :  on  motion  of  E.  F.  his  executor,  &c.  by  jMr.  N. 
liis  counsel,  it  is  ordered,  that  the  said  E.  F.  be  made  defendant 
in  the  place  of  the  said  C.  D. 


296  CHANCERY. 

Order  for  Citation. 

A.  B.     ] 

vs.     >    In  Chancery. 
C.  D.    ) 

The  death  of  C.  D.  bein^  this  day 

suggested;  on  motion  of by  Mr.  N.  his  counsel,  it  is  ordered, 

that  a  citation  issue  against  E.  F.  exccutoj;  &c.  of  the  said  C.  D. 
to  make  him  defendant,  in  place  of  the  said  C.  D.  returnable  at  the 
next  term. 


Form  of  Citation. 

The  State  of  Ohio, County,  ss. 

To  the  Sheriff  of  said  County,  Greeting  : 

We  command  you,  that  you  cite  E.  F.  executor,  &c.  of  C.  D. 
to  appear  on  the  first  day  of  the  next  term  of  our  Court  of  Common 

Pleas  within  and  for  the  said  County  of before  our  Judges  of 

the  same  Court,  at  the  Court  House  in  said  County,  and  make 
himself  party  defendant,  in  the  place  of  the  said  C.  D.  in  a  certain 
suit  in  Chancery  now  pending  in  our  said  Court,  wherein  A.  B.  is 
complainant  and  the  said  C  D.  was  defendant,  and  have  you  then 
there  this  writ.  (a>. 

Witness,  T.  T.  President  Judge  of  our  Court  of  Common 
Pleas,  aforesaid,  this day  of A.  D. . 

Attest. 

F.  C.  Clerk. 

The  citation  is  served  upon  the  party  in  the  same  manner  as 
a  subposna,  and  upon  the  return  of  such  service,  the  cause  pro- 
ceeds to  a  hearing  in  the  same  manner,  as  if  a  bill  of  revivor  had 
been  filed,  and  the  subpoena  returned  served. 

(o)  This  form  is  equally  applicable  to  actions  at  law,  by  substituting  the 
words  "a/  /<»t*,"  in  place  of  the  words  "in  Chancery.'" 


CHANCERY.  297 


BILLS    OF    REVIVOK    A>U    SUPPLEMENT. 

This  species  of  bill  is  resorted  to,  when  not  only  an  abatement 
has  taken  place  in  a  suit,  but  defects  are  to  be  supplied,  or  new 
events  stated,  which  have  arisen  since  the  commencement  of  the 
»uit.  Coop.  Eq.  84.  This  bill  is  readily  formed  by  combining 
the  forms  of  a  bill  of  revivor  and  supplemental  bill,  ante.  p.  291, 293. 


CItOSS    BILL. 

A  cross  bill,  presupposes  that  a  bill  has  been  filed  by  the  defend- 
ant in  a  suit  against  tiic  plaintiff,  respecting  the  matter  in  question  in 
that  bill ;  and  in  such  case  it  is  a,  weapon  of  defence.  Sometimes 
however,  a  cross  bill  is  brought  by  one  defendant  against  his  co- 
defendants,  in  such  depending  suit,  where  they  have  opposite  claims 
which  the  Court  cannot  determine  upon  in  the  bill  already  filed  ; 
but  in  such  case  the  original  plaintiff  must  be  made  a  defendant 
to  the  cross  bill.  A  defendant  is  sometimes  of  necessity  obliged 
to  resort  to  a  cross  bill,  in  cases  where  by  the  rules  of  pleading  in 
equity,  he  would  not  be  able  to  avail  himself  of  the  matter  of  his 
defence  in  any  other  way.  Thus  if  the  matter  of  defence  arises 
after  the  cause  is  at  issue,  as  that  the  plaintifl'has  given  the  defendant 
a  release,  or  that  there  has  been  an  award  made  on  a  reference  alter 
issue  joined,  which  at  law  may  be  pleaded,  puii  darrein  con- 
tinuance; a  defendant  in  equity  cannot  avail  himself  of  either  by 
plea  or  answer,  and  therefore  must  resort  to  a  gross  bill.  4  East. 
413.  9  East.  82,  Coop.  Eq.  80,  A  cross  bill  is  a  defence,  and 
so  connected  with  the  original  bill,  tiiat  they  arc  always  consider- 
ed but  as  one  cause.  5  ^l//i-.  812.  The  IMaintitfin  the  cross  bill 
must  put  in  his  answer  to  the  original  bill,  before  the  defendant  to 
the  cross  bill  can  be  compelled  to  answer.  Stat.  vol.  29,/>.  N(;,  § 
29,  A  cross  iiill  taken  y>/v;  cunfcsso,  \w:\y  be  ordered  to  be  read  at 
the  hearing  of  the  original  cause,  2  Mad.  43.  It  is  an  invariable 
rule  in  England,  ihat  a  cross  bill  must  be  brought  befirc  publica- 
tion is  passed  in  the  original  cause,  and  not  after,  unless  the  j)lain- 
tiff  in  the  cross  bill  will  go  to  a  hearing  upon  the  depositions 
already   published.     I     Ktj.   Ca.    79.    Coop.    Eq.    37.      There  is 


298  CHANCERY. 


CROSS    BILLS. 

nothing  in  our  practice  analogous  to  the  passing  of  publication  in 
England,  and  at  what  time  a  cross  bill  cannot  be  filed  seems  never 
to  have  been  settled  by  our  Supreme  Court, 

The  form  of  a  cross  bill,  is  substantially  the  same  as  an  original 
bill.  It  should  state  the  parties  to  the  original  bill,  the  prayer  or 
object  of  it,  the  proceedings  thereon,  and  the  rights  of  the  party 
exhibiting  the  bill,  w^hich  are  necessary  to  be  made  the  subject  of 
cross  litigation.    Coop.   Eq.  88. 


CHANCERY.  209 


BILL    OF    REVIEW 


•  Bills  of  review  are  in  the  nature  of  a  writ  of  error,  at  com- 
mon law,  and  are  brought  to  review,  alter  or  reverse  decrees  in 
Chancery.  Formerly  writs  of  error  lay  directly  from  the  Su- 
preme Court,  to  the  final  decrees  of  the  Court  of  Common  Picas, 
and  this  was  the  remedy  often  resorted  to,  in  order  to  correct  the 
errors  of  the  Court  of  Common  Pleas.  The  statute  authorizing 
writs  of  error  in  such  cases  was  repealed  in  1831,  and  a  bill  o^ 
review  is  now  the  only  remedy  by  which  decrees  in  Chancery 
can  be  rc-cxamincd,  and  reversed  or  affirmed.  Any  person  who 
was  party  to  the  decree,  his  heirs,  executors  or  administrators,  may 
file  a  bill,  to  review  the  proceedings  in  which  such  decree  was 
rendered,  at  any  time  within  five  years,  after  the  rendition  of  the 
decree.  If  the  person  entitled  to  such  bill,  be  an  infant,  feme  covert, 
non  compos  mentis,  or  im}>risoned,  the  bill  may  be  filed  within 
five  years  after  the  removal  of  such  disability.  Stat.  vol.  29.  p. 
90.  §  57.  If  the  bill  be  brought  upon  errors  in  law  appearing  in 
the  body  of  the  decree,  or  proceedings  themselves,  it  may  be  filed 
as  an  original  bill  in  Chancery,  as  a  matter  of  course  ;  but  if  it  be 
brought  upon  the  discovery  of  new  matter,  since  the  liearing  on 
the  former  decree,  it  can  be  filed  only  by  leave  of  the  Court  to 
which  it  is  cxiiibitcd.  Ihid.  §  .58. 

In  England,  it  is  a  well  settled  rule,  that  on  a  bill  of  review  for 
errors  hi  lair,  the  Court  cannot  enquire  into  the  sujficiency  of  the 
^Yoo^  o{  any  fact,  but  the  original  decision  of  the  Court  upon  the  p/^ 
feet  of  evidence,  is  to  be  taken  as  conclusive.  1*»  Yes.  348.  2JuIiiis. 
C/i.  17,  Ves.  173.  Coop.  Eg.  89.  This  rule  seems  to  be  founded 
upon,  or  rather  grows  out  of,  another  settled  principle,  that  the 
final  decree  must  present  a  history  of  the  case,  and  must  contain 
a/////  slatrinenl  of  all  the  fads  on  which  the  decision  of  the  Chan- 
cellor is  founded.  Hind.  129.  I  liar.  Cli.  418.  In  our  state 
however,  an  entirely  dinbrent  practice  prevails.  Errors  may  be 
assigned  upon  the  record  generally,  and  the  Court  will  examine 
the  whole  case,  and  deride  as  if  the  matter  were  open  before  them, 
in  the  same  situation,  as  when  die  decree  was  pronounced.     It  is 


300  CHANCERY. 


BILL    OF    REVIEW. 


not  necessary  that  the  facts  proved,  or  principles  decided  should 
be  inserted  in  the  decree ;  and  the  Court,  upon  a  bill  of  review, 
will  examine  all  the  exhibits,  proofs,  &c.  in  order  to  determine 
whether  the  original  decree  be  erroneous  or  not,  2  Ohio  Rep.  372. 
Ohio  Conds.  405.   (a) 

The  bill  must  recite  the  substance  of  the  original  bill  and  an- 
swer, exhibits  and  depositions,  and  the  proceedings  thereon,  and 
must  state  the  points  in  which  the  party  conceives  himself  aggriev- 
ed. 3  Ch.  Rep.  45.  2  Ohio  Rep.  372.  Ohio  Conds.  405.  No  error 
can  be  examined  but  what,  is  assigned  in  the  bill.  Coop.  Eq.  95.  1 
Har.  140.   Vin.  Ahg.  414. 

It  is  discretionary  with  the  Court  to  give  leave  to  file  a  bill  of 
review  on  the  discovery  of  new  evidence.  2  Cox  3.  1  Ch.  Ca.  152. 
The  rule  of  Lord  Bacon,  as  declared  in  his  ordinance.  No.  1.  (and 
Lord  Hardwicke  says  the  rule  has  never  been  departed  from)  is, 
that  a  bill  of  review,  upon  matter  of  fact,  must  be  upon  special 
leave  of  the  Court,  and  upon  oath  of  the  discovery  ot  ^^new  mat- 
ter, or  evidence  which  hath  come  to  light  after  the  decree,  and 
could  not  possibly  he  had  or  used  at  the  time  when  the  decree  pas- 
sed." If  the  party  might  have  used  the  new  proof  when  the 
decree  was  made,  it  is  not  a  sufficient  ground  for  a  bill  of  review. 
3  Johns.  Ch.  128.    Though  the  plaintiff  is  confined  to  errors  on  the 


(a)  The  case  here  referred  to  wns  decided,  and  the  practice  upon  bills  of 
review  as  here  gtat^d,  originated  under  t!ie  act  of  1810,  which  has  been 
repealed,  by  a  subsequent  statute;  and  doubts  have  been  entertained, 
whether  under  our  present  statute,  vol.  29,  p.  81,  the  final  decree  should 
not,  as  in  England,  find  all  the  material  facts,  and  the  decision  of  the  Court 
upon  the  ejfect  of  evidence,  be  held  conclusive.  It  must  be  admitted,  that 
the  practice  under  the  act  of  1810,  is  extremely  loose  and  inartificial.  At 
law  the  finding  of  a  jury,  after  judgment,  is  conclusive,  and  it  seems  some- 
what inconsistent,  to  hold,  tliat  the  finding  of  a  Chancellor,  who  is  gener- 
ally more  competent,  and  proceeds  with  more  deliberation,  and  with  bet- 
ter lights,  should  conclude  nothing;  and  that  his  judgment,  upon  a  given 
state  of  facts,  should  be  subject  to  re-examination,  by  every  succeeding 
Chancellor,  until  the  statute  of  limitation  interposes  a  bar.  The  practice, 
however,  under  the  act  of  1810,  as  recognized  in  the  case  above  refered  to, 
has  very  generally  prevailed  under  the  present  statute,  and  seems  to  be  so 
far  established  as  to  render  necessary  the  interposition  of  the  Legislature, 
or  a  decision  of  the  Supreme  Court,  in  order  to  effect  a  change,  should  a 
change  be  considered  desirable. 


CHANCERY.  801 

BILL    OF    REVIEW. 

record,  the  defendant  is  at  liberty  to  allege  every  matter  relevant 
to  his  defence,  whether  in  or  out  of  the  record,  by  way  of  re- 
lease, &c.  to  prevent  disturbing  the  decree.  And  when  pleaded 
the  Court  is  to  judge  whether  the  matter  alleged,  is  sullicicnt  to 
preclude  the  plaintiff  from  the  review  he  seeks.  2  Bio.  F.  C.  107. 
1  Ch,  Ca.  122.  Parties  to  the  original  decree  must  all  be  made 
parties  to  the  bill  of  review.  Ibid. 

A  bill  of  review  cannot  be  brought  after  a  demurrer  allowed  to 
a  former  bill  of  review.  1  Vent.  441.  Where  the  original  de- 
cree was  by  consent  of  parties,  a  bill  of  review  will  be  dismissed. 
3  Swan.  658.  A  bill  of  review  cannot  be  iilcd  by  the  party  in 
favor  of  whom  the  decree  was  pronounced.  2  Free.  182.  But,  See, 
3  Swa7i.   625. 


FORM    OF    BILL    OF    REVIEW    UPON    ERRORS    IN    LAW. 

To  the  Court  of,  &c.  [The  Court  wJiicli  pronounced  tlic  ori- 
ginal decree. '\ 

A.  B.  of,  &c.  represents  that  on  or  about ozie  C.  D.  of,  &c. 

filed  his  original  bill  in  tiiis  Court,  against  your  orator,  setting 
forth,  &c.  [Here  insert  the  substance  of  the  original  bill,  exhibits, 

^c]    and  afterwards  on  or  ab(xit  your  orator  put  in   his 

answer  to  said  bill  setting  forth,  &c.  [Here  insert  the  substance 
of  the  original  answer,  exhibits,  ^^c.']  to  which  answer  the  said 
C.  D.  afterwards  replied  generally,  and  thereupon  the  following 
depositions  were  taken,  to  wil,   [Here  insert  the  depositions]  {a) 

and  afterwards  on  or  about the  said  cause  coming  on  to  be 

heard  in  this  Court,  it  was  ordered,  adjudged  and  decreed  as  fol- 
lows, to  wit.  [Here  insert  the  original  deci-ee.']  *  And  your  orator 
avers  that  he  is  aggrieved  by  the  said  proceedings  and  decree* 


(rt)  In    like  manner,  state  all  the  interlocutory  orders,  Master's  Report, 
continuances,  kc.  See,  ante-  300  ,  n.  {<i)- 


302  CHANCERY. 


BILI-    OF    REVIEW. 

and  ought  not  to  be  bound  thereby,  and  that  the  said  decree  is  er- 
roneous and  ought  to  be  reversed:  and  your  orator,  according  to 
the  course  of  this  Court,  for  causes  of  error  assigns  the  following, 
to  wit : 

First,  your  orator  says  that,  ^^c.  [Here  assig7i  the  errors  speci- 
fically'] for  all  Vv'hich  errors  and  imperfections  your  orator  has 
brought  this  his  bill  of  review,  and  conceives  that  he  should  be 
relieved  therein. 

Your  orator  therefore  prays  that  a  writ  of  subposna  naay  be 
issued  against  the  said  C.  D.  that  he  may  be  compelled  to  answer 
all  and  singular  the  premises,  that  said  proceedings  and  decree 
may  be  reviewed  and  reversed  ;  and  that  your  orator  may  be  re- 
lieved in  all  and  singular  the  premises  according  to  equity  and 
good  conscience. 

The  bill,  being  for  errors  in  law,  is  filed  with  the  Clerk,  as  a 
matter  of  course,  without  leave  of  Court,  and  process  issues  as  in 
cases  of  original  bills. 


T.  S.  Sol.  for  Complt. 


FORM     OF    BILL    OF    REVIEW    UPON    DISCOVERY    OF    NEW    MATTER. 

[Proceed  as  in  the  last  precedent  to  the  * And  your  orator 

avers,  that  since  the  rendition  of  said  decree,  new  matter  has 
come  to  the  knowledge  of  your  orator  touching  the  rights  of  your 
orator,  in  the  premises;  which  new  matter  is  as  follows,  [Here  set 
forth  the  facts].  And  your  orator  further  avers  that  he  is  ag- 
grieved by  the  proceedings  and  decree  aforesaid,  and  therefore 
upon  the  new  matter  so  discovered  as  aforesaid  your  orator  has 
brought  this  his  bill  of  review,  and  conceives  that  he  should  be  re- 
lieved therein. 

Your  orator  therefore  prays,  &c.  [Conclude  as  in  the  last  pre- 
cedent.'] 


CHANCERY.  303 


BILLS    OF    REVIEW. 


To  this  bill  the  follo'W'ing  affidavit  must  be  annexed. 

The  State  of  Ohio County,  ss. 

T,  A.  B.  being  duly  sw^orn  de- 
pose and  say,  that  the  matters  set  forth  in  the  foregoing  bill  as  new 
matters,  first  came  to  my  knowledge  after  the  decree  mentioned  in 
the  foregoing  bill  was  rendered,  and  that  said  new  matter  could 
not  possibly  be  had  or  used  at  the  time  when  said  decree  was  pas- 
sed. 

A.  B. 

Sworn,  (fee. 

The  bill  is  then  presented  to  the  Court,  and  if  leave  to  file  it  is 
given,  the  entry  on  the  journal  is  thus : 


ENTRY    OF    LEAVE    TO    FILE    BILL    OF    REVIEW    ON    DISCOVERY 
ON    NEW    MATTER. 

On  motion  t  o  theCourt,  by  Mr.  N.  counsel  for  A.  B.  It  is  order- 
ed, that  the  said  A.  B.  be  at  liberty  to  file  a  bill  of  review,  for 
new  discovered  matters,  upon  a  decree  in  Chancery  rendered  at 
the term  of  this  Court  A.  D. wherein  C.  D  was  com- 
plainant and  the  said  A.  B.  defendant,  and  tiiereupon  the  said  A.  B. 
filed  his  bill  of  review  accordingly. 

The  bill  being  filed,  the  same  process  issues  as  in  cases  of  origin- 
al bills. 


304  CHANCERY. 


BILL    or    REVIEW. 


DEFENCE. 


The  constant  defence  to  a  bill  of  review  for  errors  apparent 
upon  a  decree,  has  been  said  to  be,  by  plea  of  the  decree,  and  de- 
murrer against  opening  the  enrollment.  Coop.  Eq.  215.  2  Atk. 
534.  This  rule  however,  is  not  now  observed  in  England;  and 
the  English  books  of  practice  contain  the  forms  of  demurrer,  as 
the  proper  defence  to  such  a  bill,  and  there  are  cases  accordingly. 

1  Ch.  Ca.  122.  1  P.  Wms.  139.  In  this  state  where  errors 
are  assigned  upon  the  whole  record,  a  demurrer  seems  to  be  the 
only  proper  mode  of  making  up  an  issue,  and  this  course  was 
pursued  in,  2  Ohio  Rep.  327.  Oliio  Conds.  405.  The  demurrer  is  in 
the  common  form.  See,  anle.  Demurrers. 

A  bill  of  review  iq^on  the  discovery  of  new  matter,  being  ex- 
hibited only  by  leave  of  the  Court,  the  ground  of  the  bill  is  gener- 
ally well  considered  befoi'e  it  is  brought ;  and  therefore,  in  point 
of  substance,  it  can  rarely  be  liable  to  a  demurrer  :  but  if  the  de- 
fendant conceives  the  new  matter  to  be  irrelevant,  he  might  proba- 
bly take  advantage  of  it  by  demurrer,  although  the  relevancy  ought 
to  have  been  considered  at  the  time  leave  was  given  to  file  the 
bill.  Coop.  Eq.  216.  2  Ath.  40.  Where  leave  is  granted  to  file 
the  bill  upon  an  application  ex  parte,  as  may  be  done  under  our 
practice,  the  defendant  may  undoubtedly  take  advantage  of  irrele- 
vancy, &c.  by  way  of  demurrer.  The  demurrer  may  be  in  the 
usual  form.   See,  ante.  Demurrers. 

Where  any  matter  out  of  the  decree,  as  length  of  time,  a  pur- 
chase for  a  valuable  consideration,  or  any  other  matter,  is  to  be 
offered  against  opening  the  decree,  that  matter  must  be  pleaded. 

2  Mad.  Ch.  543.  2  Ves.  Sen.  109.  Bro.  P.C.  107.  A  bill  of 
review  upon  the  discovery  of  new  matter  seems  liable  to  any  plea 
which  would  have  avoided  the  effect  of  that  matter,  if  charged  in 
the  original  bill.  It  appears  to  have  been  doubted  whether  the 
fact  of  the  discovery  of  the  matter  alleged  to  support  a  bill  of 


CHANCERY.  305 


BILL    OF    REVIEW. 


review,  can  be  traversed  by  plea,  after  the  Court  upon  evidence  of 
the  fact,  has  given  leave  to  file  the  bill ;  but  if  the  fact  of  the  dis- 
covery is  in  issue  in  the  cause,  it  ought  to  be  proved,  as  a  ground 
for  reviewing  the  decree,  and  it  may  consequently  be  disproved 
by  evidence  on  the  part  of  the  defendant.  2  Mad.  Ch.  543.  Red. 
Tr.  36.  60.    For  forms  of  Pleas,  See,  ante.  278. 

Affidavits  in  opposition  to  the  motion  for  leave  to  file  a  bill 
of  review,  arc  sometimes  admissible.  Upon  this  point  the  chan- 
cellor seems  to  exercise  a  sound  discretion.  3  Johns.  Ch.  124. 
The  Court  may  also,  at  their  discretion,  on  motion,  stay  the  pro- 
ceedings on  the  original  decree,  until  further  order  or  final  decree 
in  the  bill  of  review,  provided  the  motion  be  made  at  the  proper 
time.     Stat.  vol.  29.  p.  90.  §  58.  59. 

Oo 


80C  CHANCERY. 


BILLS    TO    CARRY    DECREES    INTO    EXECUTION. 

Sometimes,  from  the  neglect  of  parties,  or  some  other  cause,  it 
becomes  impossible  to  carry  a  decree  into  execution,  without  the 
further  decree  of  the  Court.  2  Ch.  Ca.  123.  2  Ves.  409.  Such 
a  bill  is  sometimes  exhibited  by  a  person,  who  was  not  a  party, 
nor  claims  under  any  party  to  the  original  decree,  but  claims  in 
a  similar  interest;  or  is  unable  to  obtain  the  determination  of  his 
own  rights,  till  the  decree  is  carried  into  execution;  or  it  may  be 
brought  by  or  against  any  person  claiming  as  assignee  of  a  party 
to  the  decree.  1  Ch.  Ca.  231.  3  P.  Wms.  197.  4  Bro.  P.  C. 
168.  2  Ohio  Rep.  372.  Ohio  Conds.  405.  A  bill  for  this  pur- 
pose is  generally  partly  an  original  bill,  and  partly  a  bill  in  the 
nature  of  an  original  bill,  though  not  strictly  original;  and  some- 
times it  is  likewise  a  bill  of  revivor,  or  a  supplemental  bill,  or  both. 
The  form  of  the  bill  is  varied  accordingly.  See,  Mit,  PL  37,  38. 
2  Ohio  Rep.  372.    Ohio  Conds.  405. 


Bills  to  suspend  the  operation  of  Decrees. 

This  class  of  bills,  as  well  as  bills  to  impeach  decrees,  on  the 
ground  of  fraud,  and  bills  in  the  nature  of  supplemental  bills,  may 
be  considered  as  forming  a  part  of  our  Chancery  system;  but  they 
are  seldom  resorted  to  in  practice.  See,  Coop.  Eq.  96,  98.  Mit. 
PL  34,  84,  60,  67. 


Petitions  for  Rehearing. 


Within  thirty  days  after  the  making  of  an  order,  a  petition  for 
a  rehearing  may  be  tiled,  and  the  prayer  thereof  may  be  allowed 
or  disallowed,  at  the  discretion  of  any  two  of  the  Judges  of  the 
Court  of  Common  Pleas,  or  one  of  the  Judges  of  the  Supreme 


CHANCERY.  307 

Court,  who  made  the  order  on  the  hearing  of  the  cause.  Stat.  vol. 
29,  p.  90,  §  50.  Such  petition  must  always  be  signed  by  counsel. 
Ibid.  The  petition  recites  the  original  bill,  and  subsequent  pro- 
ceedings, in  the  same  manner  as  a  bill  of  review,  and  concludes 
with  a  prayer  that  the  cause  may  be  reheard.  The  form  of  the 
petition  is  substantially  the  same  as  a  bill  of  review.  See,  ajite. 
301.  The  allowance  of  the  prayer  of  the  petition  is  endorsed 
thus; 


Allowance  of  Petition  of  Rehearing. 


The  prayer  of  the  within  petition  is  allowed. 
Dated,  &c. 


The  petition  is  then  filed  with  the  Clerk  of  the  proper  Court, 
who  issues  process  as  in  other  cases  in  Chancery. 


308  INJUNCTIONS. 


IlVJUNCTIOXS. 


Injunctions  in  Ohio  are  regulated  by  the  same  general  princi- 
ples as  in  England.  An  injunction  is  a  prompt  interference  of  a 
Court  of  Chancery,  by  which  it  restrains  the  commission  of  any 
act,  by  which  fraud  or  injustice  may  be  perpetrated.  It  may  be 
obtained,  1.  To  stay  waste.  2.  To  restrain  infringement  of  pa- 
tent. 3.  To  preserve  copy  right.  4.  To  restrain  the  negotiation 
of  bills,  &c.  or  the  transfer  of  stock.  5.  To  stay  proceedings  in 
Courts  of  law.  6,  To  prevent  nuisances.  And,  lastly,  in  most 
cases  where  the  rights  of  others  are  invaded,  and  the  remedy  by 
the  ordinary  course  of  law,  is  too  remote  or  dilatory,  to  prevent 
increasing  damage.    X.  Peter sd.  Jihg.  613. 


The  allowance  of  an  Injunction,  {a). 

An  injunction  to  stay  icaste  can  only  be  allowed  by  the  Supreme 
Court,  in  term  time,  or  by  a  single  Judge  thereof,  in  vacation ;  or 
by  the  Court  of  Common  Pleas,  in  term  time,  or  by  the  President 
Judge,  in  vacation.    Stat.  vol.  29,  p.  87,  §  41. 


(n)  In  tlio  Courts  of  the  United  States,  injunctions  may  be  gfranled,  not 
only  by  tbe  Sniireine  and  Circiiit  Court.-;,  but  also  by  any  Judge  of  the  .'Su- 
preme Court,  and  by  tbe  Judo;es  of  tbe  J^K-lnct  Courts,  in  cases  coining 
i.eforc  the  {Jircuit  Courts  in  their  respective  Districts.  But  injunctions 
granted  by  the  District  .Tudges,  will  not  coRtinue  in  force  after  tiie  next 
Court,  unless  so  ordered  by  the  Circuit  Court,  nor  can  an  injunction  be 
issued  by  a  District  Judge,  vvliere-a  party  has  had  reasonable  time  to  apply 
to  tiie  (Circuit  Court.  No  injunction  can  he  granted  to  stay  proceedings  in 
a  St;;te  Court;  nor  in  any  case,  without  previous  notice  to  the  adverse  party 
or  his  attorney.  Tlie  facts  on  which  the  application  is  founded,  must  be 
verified  by  affidavit,  or  in  some  other  manner,  .fids  of  Congress,  Marc 't  2, 
lim.  and  Feb.  V3,  1807.  2  nallas260.  4:  Dallas  1.  4Crancftll9.  The 
Circuit  Court  may  issue  an  injunction  to  stn-y  proceedings  at  law  in  that 
Court,  though  the  subpoena  be  served  upon  the  defeHdant  in  the  State  in 
which  he  resides,  and  out  of  the  district  in  which  the  Court  sits.  5  Cranch 
288.  A  State  Court  has  no  jurisdiction  to  enjoin  a  judgment  of  the  Circuit 
Court.    7  Craneh  279.    9  CraTirh  19—25. 


INJUNCTIONS.  309 

An  injunctionjo  stay  jiroceedings  at  laic,  before  or  after  judg- 
ment, may^be  allowed  by  the  Supreme  Court  or  Court  of  Common 
Pleas,  in  term  time,  or  by  any  Judge  thereof,  in  vacation.  Ibid. 

The  Supreme  Court,  in  term  time,  or  any  Judge  thereof,  in  va- 
cation; and  the  Court  of  Common  Pleas,  in  term  time,  or  any 
Judge  thereof,  in  vacation,  may  allow  injunctions,  in  all  other 
cases,  where  it  is  usual  for  Courts  of  Equity  to  interfere  by  in- 
junction.    Ih.p.  89,  §  50. 

No  injunction  can  be  allowed  by  the  Supreme  Court,  or  by  any 
Judge  thereof,  to  stay  proceedings  at  law,  before  or  after  judg- 
ment, unless  the  matter  in  dispute  be  of  sufficient  value  to  give 
original  jurisdiction  to  the  Court  of  Common  Pleas;  and  no  injunc- 
tion can  be  allowed,  in  such  cases,  by  the  Court  of  Common  Pleas, 
or  by  any  Judge  thereof,  unless  the  matter  in  dispute  be  of  the 
value  of  twenty  dollars.    Stat.  vol.  29,  p.  87,  §42. 

In  all  applications  for  an  injunction,  the  bill  must  show  good 
cause  in  equity  for  such  an  injunction,  and  be  verified  by  affidavit. 
Stat.  vol.  29,  p.  87,  89,  §  42,  50.  For  the  form  of  affidavit.  See, 
ante.  258,  ?i.  (a). 

Bills  of  injunction  are  the  same  in  form  as  other  original  bills, 
praying  relief.  Indeed,  a  bill  of  injunction  is  no  other  than  an 
original  bill  with  a  prayer  for  an  injunction  superadded.  This 
prayer  must  be  varied  to  meet  the  exigencies  of  each  case ;  as, 
"  That  the  defendant  may  be  enjoined  from  all  further  proceedings 
upon  his  judgment  at  law,"  or,  "that  he  may  be  enjoined  from  sell- 
ing or  transferring  the  promissory  note  in  the  bill  mentioned,"  or, 
"that  he  may  be  enjoined  from  violating  the  copy  right  of  the 
complainant,"  &c.    See,  Forms  of  Bills,  ante.  250. 

The  bill  being  prepared,  with  the  affidavit  annexed,  application 
is  made  to  the  Court,  or  to  the  proper  Judge,  for  the  allowance  of 
an  injunction.  The  application  may  be,  and  most  usually  is,  ex 
parte,  especially  when  made  in  vacation;  but  the  Court,  in  term 
time,  will  generally  require  notice  to  be  given  to  the  adverse  party 
or  his  attorney,  if  practicable.  If  the  injunction  be  allowed  by 
the  Court,  the  entry  on  the  Journal  is  thus : 


:il0  INJUNCTIONS. 


Form  of  allowance  of  Injunction  by  Cour.. 


In  Chancery. 


On  motion  to  the  Court  by  Mr.  N. 
counsel  for  the  plaintiff,  it  is  ordered  that  an  injunction  be  allowed 
as  prayed  for  in  the  bill,  to  be  continued  until  the  further  order  of 
the  Court  ;   and  that  the  plaintiff  give  bond  and  security  to  the 

defendant  in  the  sum  of dollars,  conditioned  according  to 

law.   (a). 

If  the  Injunction  be  allowed  by  a  Judge,  in  vacation,  the  allow- 
ance is  endorsed  by  the  Judge  on  the  back  of  the  bill,  thus : 


Form  or  allowance  by  a  Judge  in  vacation.  ' 

I  allow  an  injunction  as  prayed  for  in  this  bill,  to  be  continued 
until  the  further  order  of  the  Court;  and  order  the  plaintiff  to  give 

bond  and  security  to  the  defendant  in  the  sum  of dollars, 

conditioned  according  to  law.   (a). 

A.  T.  Judge,  <^c. 
Dated,  &c. 


Notwithstanding  the  allowance,  an  injunction  will  not  operate  to 
stay  proceedings  at  law,  before  or  after  judgment,  until  the  com- 
plainant shall  comply  with  the  order  of  the  Court  or  Judge,  and 


(a)  In  all  applications  for  an  injunction  to  slay  proceedings  at  law,  the 
Court  or  Judge  must  direct  the  amount  in  which  security  shall  be  given  by 
the  complainant.  Stat.  vol.  29,  p.  87,  ^  42.  In  all  other  cases,  except  to 
stay  waste,  the  Court  or  Judge  may  impose  such  conditions  upon  the  party 
obtaining  an  injunction,  as  shall  seem  to  them  equitable.  Ibid,  p.  89,  J  50. 
These  condition?,  whatever  they  may  be,  will,  of  course,  be  entered  upon 
the  journal,  or  endorsed  by  the  Judge  on  the  back  of  the  bill. 


INJUNCTIONS.  311 

shall  give  bond,  with  sufficient  security,  to  be  approved  by  the 
Clerk  of  the  Court,  granting  such  injunction,  in  the  amount  re- 
quired by  the  Court  or  Judge  allowing  the  same,  for  the  payment 
of  all  moneys  and  costs  due,  or  to  become  due,  from  the  complain- 
ant in  the  suit  or  judgment  at  law,  and  all  money  and  costs  which 
shall  be  decreed  against  him,  in  case  such  injunction  shall  be  dis- 
solved.    Slat.  vol.  29,  p.  87,  §  43. 


Form  of  Ixjuxction  Bond. 

Know  all  men  by  these  presents,  that  wc  CD.  &c.  (a)  arc  held 

and  firmly  bound  unto  A.  B.  in  the  sum  of dollars,  [the  sum 

fixed  by  the  Court  or  Judge']  to  the  payment  of  which  we  jointly 
and  severally  bind  ourselves,  our  heirs,  executors,  and  adminis- 
trators, sealed  with  our  seals,  and  dated  this  day  of 

A.  D. . 

The  condition  of  the  above  obligation  is  such,  that  whereas,  the 
above  named  C.  D.  has  obtained  an  allowance  of  an  injunction  in 

the  Court  of  Common  Pleas  of  the  County  of and  State  of 

Ohio,  to  stay  all  further  proceedings  upon  a  judgment  obtained  in 
the  same  Court  of  Common  Pleas  by  the  said  A.  B.  against  the 

said  C.  D.  at  the term  thereof,  A.  D. for  the  sum  of 

dollars,  debt,  or,  damages,  and dollars,  costs,  until  the  matter 

thereof  can  be  heard  in  equity :  Now  if  the  said  C.  D.  shall  pay 
all  moneys  and  costs  due,  or  to  become  dud,  from  him,  the  said  C. 
D.  in  said  judgment  at  law,  and  all  moneys  and  costs  which  shall 
be  decreed  against  the  said  C.  D.  in  case  said  injunction  shall  be 
dissolved,  then  this  obligation  shall  be  void;  otherwise,  in  full  force 
and  virtue  in  law. 

[seal.] 
[seal.] 

Approved,  this day  of A.  D. . 

F.  D.  Clerk. 


(a)  It  is  not  necessary  that  tho  complainant  sliould  himself  execute  the 
bond  ;  it  is  BUtiicieot,  if  executed  by  sureties  to  the  acceptance  of  tho  Clerk. 


312  INJUNCTIONS. 

The  injunction  bond  being  executed,  the  Clerk  will  issue  the 
subpoena,  and  endorse  upon  it,  "Injunction  allowed  and  bail  given," 
and  sign  his  name  to  such  endorsement ;  and  in  no  case  is  it  neces- 
sary to  issue  a  writ  of  injunction,  ^tat.  vol.  29,  p.  87.  §  43.  For 
the  form  of  the  subpoena  and  endorsement,  See,  ante.  265.  Under 
this  provision  of  the  statute,  the  service  of  a  subpoena  thus  endors- 
ed, is  tantamount  to  the  service  of  a  writ  of  injunction,  and  operates 
upon  the  defendant  in  the  same  manner,  to  all  intents  and  purposes. 
It  is  analogous  to  the  English  rule,  that  when  the  defendant  has 
actual  notice,  either  by  being  in  Court,  and  hearing  the  injunction 
pronounced,  or  otherwise,  he  is  as  much  bound  as  if  he  had  been 
actually  served  with  a  writ  of  injunction.  3  Atk.  567.  14  Ves. 
136,     18  Ves.  325. 


MASTERS  IN  CHANCERY.  313 


Masters  ik  Chancery. 

Master  Commissioners  in  Chancery,  are  appointed  in  each 
County,  by  the  Supreme  Court,  and  Court  of  Common  Pleas,  and 
are  invested  with  power  to  take  depositions  in  cases  at  law  and 
in  equity;  to  issue  process  to  compel  the  attendance  of  witnesses; 
and  to  do  all  other  ministerial  acts  commonly  performed  by  Mas- 
terg  in  Chancery.    Stat.  vol.  29,  p.  91,  §  62. 

The  most  common  business  of  a  Master  is  the  stating  of  ac- 
counts, computing  damages,  ascertaining  titles  to  real  estate,  ma- 
king sale  thereof,  &c.  under  interlocutory  decrees.  In  the  case 
of  Remsen  vs.  Remsen,  (2  Johns.  Ch.  Rep.  495,)  the  Court  laid 
down  the  following  rules  of  practice,  to  be  deduced  from  the  books, 
and  which  ought  to  prevail  on  the  subject  of  examinations  before 
a  Master,  so  as  to  unite  convenience  and  dispatch,  with  sound 
principle  and  safety. 

I. 

The  parties  should  make  their  proofs  as  full,  before  publication, 
[before  reference']  as  the  nature  of  the  case  requires  or  admits  of,' 
to  the  end,  that  the  supplementary  proofs  before  the  Master,  may 
be  as  limited,  as  the  rights  and  responsibilities  of  the  parties  will 
admit. 

II. 

The  order  of  reference  should  specify  the  principles  on  which 
the  accounts  are  to  be  taken,  and  the  inquiry  is  to  proceed,  as  far 
as  the  Court  shall  have  decided  upon  them  ;  aiid  the  examination 
before  the  Master  should  be  limited  to  such  matters,  within  the 
limits  of  the  order,  as  the  principles  of  the  decree,  or  tlic  order 
may  render  necessary. 

III. 

That  no  witness  in  chiot,  nor  the  pm  ties,  be  examined  before 
the  Master,  without  an  order  for  that  purpose,  specifying  tiic  sub- 
ject nncl  extent  of  the  examination ;  and  a  like  order  ought  to  be 


314  MASTERS  IN  CHANCERY. 

given  when  a  witness  who  has  once  been  examined,  is  to  be  re- 
examined before  the  Master,  on  the  same  matter. 

IV. 

Upon  the  defendant  accounting  before  the  .Master,  he  is  to  be 
allowed,  on  his  own  oath,  being  credible  and  uncontradicted,  for 
sums  not  exceeding  twenty  dollars  each;  but  he  must  mention  when 
and  to  whom  he  paid  them,  and  must  swear  positively  to  the  fact, 
and  not  as  to  belief  only,  and  the  whole  of  the  items  so  established, 
must  not  exceed  five  hundred  dollars;  and  the  defendant  cannot, 
J3y  way  of  charge,  charge  another  person  in  that  way. 

V. 

The  Master  ought,  in  the  first  instance,  to  ascertain  from  the 
parties,  or  their  counsel,  by  suitable  acknowledgments,  what  mat- 
ters or  items,  are  agreed  to  or  admitted ;  and  then,  as  a  general 
rule,  and  for  the  sake  of  precision,  the  disputed  items  ought  to  be 
reduced  to  writing  by  the  parties  respectively,  by  the  way  of 
charge  and  discharge,  and  the  requisite  proofs  taken  on  written 
interrogatories,  prepared  by  the  parties  and  approved  by  the  Mas- 
ter, or  by  a  viva  voce  examination,  as  the  parlies  may  deem  most 
expedient,  or  the  Master  may  direct  in  the  given  case. 

YI. 

In  all  cases  where  the  Master  is  directed  by  the  order  to  report 
proofs,  the  depositions  of  the  witnesses  should  be  reduced  to 
w^'iting  by  the  Master,  and  subscribed  by  the  witnesses,  and  the 
depositions  returned  with  the  report  to  the  Court. 

VII. 

When  an  examination  is  once  begun  before  a  Master,  he  ought, 
on  assigning  a  reasonable  time  to  the  parties,  to  proceed  with  as 
little  delay  and  intermission  as  the  nature  of  the  case  will  admit 
of,  to  the  conclusion  of  the  examination;  and  when  once  concluded, 
it  ovkght  not  be  opened  for  further  proof,  without  special  and  very 
satisfactory  cause  shown. 

VIII. 

After  the  examination  is  concluded,  i'n  cases  of  reference  to  take 
accounts,  or  to  make  inquiry,  the  parties  or  their  attorneys,  after 


MASTERS  IN  CHANCERY.  315 

being  furnished  by  the  Master  with  a  copy  of  his  report,  ought  to 
have  a  day  assigned  to  them  to  attend  before  him,  to  the  setthng 
of  the  report,  and  to  make  objections  in  writing,  if  any  they  have  ; 
and  when  the  report  is  finally  settled  and  signed,  the  parties  ought 
to  be  confined  in  their  exceptions,  to  such  objections  as  are  over- 
ruled or  disallowed  by  the  Master. 

The  authorities  cited  by  C/iancrllor  Kent,  as  establishing  the 
above  rules,  are:  3  Ves.  603.  Dick.  .508.  6  Ves.  459,  750.  17 
Yes.  434.  2  Ves.  279.  2  Mad.  Ch.  392,  303.  1  Vern.  283,  470. 
2  Ch.  Ca.  249.  Mosely  252.  2  Atk.  409.  2  Fonh.  Eq.  452,  460 
461,462. 


Words  of  course  preceding  a  Master's  Report. 


In  Chancery. 


The  report  of  T.  X.  Master  in 
Chancery,  to  whom  this  cause  stands  referred,  for  the  purpose  of 
stating  an  account  between  the  parties,  pursuant  to  the  interlocu- 
tory decree,  rendered  at term,  A.  D. . 


Words  of  course  preceding  exceptions  to  a  master's  report. 


A.  B.    ^ 

vs.        >    In  Chancery. 
C.  D.   ) 

Exceptions  taken  by  the  complainant 
to  the  report  of  T.  X.  Master  in  Chancery,  made  in  tiiis  cause, 
and  bearing  date,  &c. 

1.  For  that  the  said   Master  in  his   said  report  has   stated, 
that,  &c. 

2.  For  that  the  said  Master  in  his  said  report  has  certified* 
that,  &c. 


316  MASTERS  IN  CHANCERY. 

In  all  which  particulars,  the  said  complainant  excepts  to  said 
report,  and  appeals  therefrom  to  the  judgment  of  this  Court. 


The  Master  Commissioner  is  often  required  to  make  sales  of 
real  and  personal  property  under  an  interlocutory  order.  For  the 
form  of  such  orders,  See,  Interlocutory  Decrees  and  Orders.  The 
Master's  report  in  such  cases,  is  as  follows: 


Report  of  Sale  by  Master  Commissioner. 

A.  B.     \ 

vs.        >    In  Chancery. 
CD.) 

The  report  of  T.  X.  Master  in 
Chancery,  who  was  ordered  to  make  sale  of  the  lands  and  tene- 
ments in  the  bill  mentioned,  by  an  interlocutory  decree,  rendered 
at term,  A.  D. . 

The  said  T.  X.  in  pursuance  of  said  interlocutory  decree,  pro- 
ceeded on  the day  of A.  D. by  the  oaths  of  A.  S. 

E.  S.  and  T.  S.  three  disinterested  freeholders,  resident  within  the 

County  of \tke  County  where  the  lands  are  situate'\  to  cause 

the  lands  and  tenements  in  the  said  bill  mentioned  to  be  appraised, 
and  which  were  accordingly  appraised,  by  said  freeholders,  at  the 

sum  of dollars,  as  per  copy  of  said  appraisement  herewith 

filed  ;  and  thereupon  the  said  T.  X.  having  first  given  public  notice 

of  the  time  and  place  of  sale,  by  advertising  the  same  for 

days  [at  least  thirty  days]  in  the a  newspaper  printed  in  the 

said  County  of and  in  general  circulation  therein,  did  sell  the 

said  lands  and  tenements,  at  public  auction,  on  the  day  of 

A.  D.  between  the  hours  of and to  F.  W.  for 

the  sum  of dollars,  being  more  than  two-thirds  of  the  ap- 
praised value  thereof.    See,  not-e  (a)  next  page. 
All  which  is  submitted. 

T.  X.  Master  Comm. 
Dated,  &c. 


MASTERS  IN  CHANCERY.  317 

The  Master's  report  of  the  pubUcation  of  the  notice  of  the  time 
and  place  of  sale,  is  not  sufficient  evidence  of  such  publication, 
but  a  copy  of  the  notice  with  an  affidavit  of  publication  is  neces- 
sary.    The  form  may  be  thus : 


Form  of  Affidavit  of  Publication. 

Personally  appeared,  in  open  Court,  T.  W.  and  made  solemn 

oath,  that  the  notice  hereto  attached,  was  published  for days 

next  after in  a  newspaper  called and  that  said  news- 
paper was,  during  that  time,  printed  in  the  County  of , 

T.  W. 

Attest 

F.  C.    Clerk. 


(rt)  This  form  can  be  readil}^  varied  to  meet  the  sale  of  personal  property. 
■\Vhen  no  newspaper  is  printed  in  ihe  County,  the  notice  niu.st  be  published 
in  a  newspaper  iii  general  circulation  in  such  County,  and  by  putting  up  an 
adveriisenieut  upon  the  Court  house  door  and  in  five  other  |)ublic  places  in 
the  County,  two  of  which  must  be  put  up  in  the  township  whore  such  lands 
and  tenements  lie.  Stat.  vol.  29,  p.  i(l4,  \  14.  In  such  cases,  the  above 
form  must  be  varied  lo  meet  the  state  of  facts. 


318  NE  EXEAT 


Ne  exeat. 

The  Supreme  Court,  or  any  Judge  thereof,  and  the  Court  of 
Common  Pleas  or  any  President  Judge  thereof,  may  grant  writs 
of  ne  exeat,  upon  bill  filed,  with  an  affidavit  annexed  of  the  truth 
ctf  the  allegations.  Stat.  vol.  20,  p.  87,  39.  This  writ  is  consid- 
ered in  the  nature  of  equitable  bail,  and  will  not,  in  general,  be 
granted  upon  a  legal  demand,  nor  under  circumstances  which 
would  not  entitle  the  plaintiff'  to  bail  at  law.  For  the  general 
principles  regulating  this  writ.  See,  8  Ves.  503.  14  Ves.  2G1.  1 
Jac.  and  Walk.  405.  2  Jac.  and  Walk.  213.  15  Ves.  443.  18 
Ves.  353.  1  Fes.  and  B.  129,  371.  1  Turn,  and  Russ.  332,  342. 
1  /.  C.  R.  1,  3G4.  6  /,  C.  R.  138.  2  /.  C.  R.  75,  412.  7  J.  C. 
R.  189. 

If  the  writ  be  granted,  the  Court  or  Judge  will  direct  to  be  en- 
dorsed thereon,  the  amount  in  which  security  shall  be  given  to  the 
complainant.    Stat.  vol.  29,  p.  87,  §  39. 


Form  of  Writ  Ne  exeat  Republica. 

The  State  of  Ohio, County,  ss. 

To  the  Sheriff  of  said  County,  Greeting  : 

Whereas,  it  is  represented  to  us,  in  our  Court  of  Common 

Pleas,  within  and  for  the  said  County  of sitting  in  Chancery, 

on  the  part  of  A.  B.  complainant,  against  C.  D.  defendant,  among 
other  things,  that  he  the  said  defendant,  &c.  [Jiere  set  forth  the 
particular  cause  of  complaint']  and  designs  quickly  to  depart  with- 
out the  limits  of  this  State,  we  therefore  hereby  command  you, 
that  you  without  delay,  cause  the  said  C.  D.  personally  to  come 

before  you,  and  give  sufficient  security  in  the  sum  of dollars, 

\the  sum  fixed  by  the  Court  or  Judged  that  he  the  said  C.  D.  will 
not  depart  beyond  the  limits  of  this  State,  without  the  leave  of  our 
said  Court;  and  in  case  the  said  C.  D.  shall  refuse  to  give  such  se- 


NE  EXEAT.  310 

curity,  then  you  are  to  commit  him  to  the  jail  of  said  County,  there 
to  be  kept  in  safe  custody  until  he  shall  do  it  of  his  own  accord,  or 
be  otherwise  legally  discharged ;  and  when  you  have  taken  such 
security,  you  are  forthwith  to  make  and  return  a  certificate  thereof 
to  us,  in  our  said  Court  of  Chancery,  under  your  seal,  together 
with  this  writ. 

Witness,  T.  T.  President  Judge  of  our  Court  of  Common 
Pleas,  aforesaid,  this day  of A.  D. . 

Attest. 

F.  C.  Clerh. 

If  the  defendant,  by  his  answer,  satisfies  the  Court  that  there  is 
no  reason  for  his  restraint,  or  gives  security  to  perform  the  decree, 
the  writ  may  be  discharged.    Stat,  vol,  29, 7?,  87,  §  40. 


320  FINAL  DECREES. 


FINAL    DECREES. 

In  England,  a  final  decree  must  contain  a  full  statement  of  all 
the  facts  upon  which  the  decision  of  the  Chancellor  is  founded. 
It  is  not  common  to  express  the  reasons  upon  which  the  decree  is 
founded,  although  in  extraordinary  cases  it  is  sometimes  done  ; 
but  it  is  essential  that  all  the  facts  should  be  embodied  in  the  de- 
cree. When  there  is  evidence  adduced  in  the  cause,  it  is  not 
enough  that  the  decree  says,  "on  reading  the  prcJofs,"  it  is  decreed, 
&c. ;  but  it  should  be,  "on  reading  the  proofs  it  appeared  thus  and 
thus,"  and  therefore  it  is  decreed,  (fee.  2  Ch.  Ca.  161.  7  Ves.  373. 
This  rule  however  does  not  prevail  in  our  practice,  and  it  is  held 
by  our  Supreme  Court,  to  be  unnecessary  to  insert  in  the  decree, 
either  the  facts  proved,  or  principles  decided.  2  O/iio  Rep.  372. 
Ohio  Conds.  485.  In  a  bill  of  review  for  errors  in  law,  the  assign- 
ment of  errors,  is  not,  as  in  England,  limited  to  the  decree  alone, 
but  may  extend  through  the  whole  record,  and  thus  the  Court  may 
enquire  into  the  sufficiency  of  the  proof  of  any  and  every  fact  in 
the  cause.  Ibid.  It  is  superfluous  therefore,  to  allege  in  a  decree, 
that  the  Court  find  any  fact  or  any  state  of  facts  to  be  true, 
or  to  make  any  recital  whatever,  except  so  far  as  may  be  necessary 
to  render  the  decree  intelligible.  The  facts  upon  wliich  the  court 
pronounce  their  decision  are  all  matters  of  record ;  and  a  recital 
of  their  existence  or  non-existence,  of  their  truth  or  falsity,  of  the 
equity  of  the  parties,  or  the  want  thereof,  can  give  no  additional 
efficacy  to  a  decree,    (a) 

BILL    DISCUSSED,    WITH    COSTS,    UPON    FINAL    HEARING. 


In  Chancery. 

This  cause  came  on  to  be  heard  upon  the  bill,  answer,  i^epli- 
cation,  Master's  report,  testimony  and  exhibits,  and  was  argued 

[a)  See,  ante.  300.  ?i.  (a.) 


FINAL  DECREES.  321 

by  counsel ;  on  consideration  whereof  the  Court  do  order  and 
decree,  that  the  said  bill  stand  dismissed,  with  costs  ;  and  without 

prejudice^  and  that  the  said  A.  B.  pay  the  same  within days, 

or  in  default  thereof  that  execution  issue  therefor  as  upon  judg- 
ments at  law.   {a) 


No.  2.  Injunction  dissolved  and  bill  dismissed,  with  costs, 
UPON  final  hearing 

This  cause  came  on  to  be  heard  upon  the  bill,  answer,  repli- 
cation, Master^s  report,  testimony  and  exhibits,  and  was  argued 
by  counsel;  on  consideration  whereof,  the  Court  do  order  and  de- 
cree, that  the  injunction  herein  before  granted  stand  dissoh^ed,  that 
the  said  bill  stand  dismissed  with  costs,  and  that  the  said  A.  B.  pay 

the  same  within days,  or  in  default  thereof  that  execution 

issue  therefor  as  upon  judgments  at  law. 

No.  3    Injunction  dissolved,  bill  dismissed,  and  decree  for 
defendant,  for  the  amount  of  judgment  at  law, 

WITH    costs    and    penalty. 

This  cause  came  on  to  be  heard  upon  the  bill,  answer,  repli- 
cation. Master's  report,  testimony  and  exhibits,  and  was  argued  by 
counsel ;  on  consideration  whereof,  the  Court  do  order  and  decree, 
that  the^injunction  hereinbefore  granted  stand  dissolved,  that  said 
bill  stand  dismissed,  with  costs,  and  that  the  said  A.  B.  pay  to  the 

said  C.  D.  within days,  the  sum  of dollars,  (/>)  together 

with  the  costs  of  this  suit,  or  in  default  thereof  that  execution  is- 
sue therefor,  as  upon  judgments  at  law. 


(n)  If  the  decree  be  renileriMl  in  the  Supreme  ("ourt,  and  a  mamlatc  bo 
awiirdcd,  say,  "and  it  is  further  onlcrcd  tliat  a  ppecial  mandate  be  sent 
down  to  the  next  Court  of  Common  I'lcas,  of  this  County,  to  carry  thia 
decree  into  execution."  It  is  necessary  to  insert  llic  words,  "and  without 
prejudice,"  as  in  tliis  precedent,  if  the  plaintitf  wisiies  to  litijjatc  the  mat- 
ter dc  iioco.  The  Court  exercises  a  discretion  in  dismissing  tlie  bill,  tvilli 
or  wilhout,  prejudice. 

(/))  If  the  decree  be  taken  in  tlic  Court  of  Common  Plr.ax,  this  blank  is 
to  be  filled   witli  the  aggregate    sum,  of  the  debt  or  damages  interest  and 


322  FINAL  DECREES. 


DECREE  UPON  ANSWER,  &C.  AGAINST  ONE  DEFENDANT,  AND  -prO 

confesso  against  another. 

This  cause  came  on  to  be  heard  upon  the  bill  of  the  complain- 
ant, answer  of  the  defendant  C.  D.  and  the  exhibits  and  testimony, 
(the  defendant  E.  F.  still  failing  to  appear,  plead,  answer  or 
demur  to  said  bill)  and  was  argued  by  counsel ;  on  consideration 
whereof,  it  is  ordered  and  decreed  as  follows,  to  wit:  I.  That  said 
bill  be  taken  for  confessed  as  against  the  said  E.  F.  and  that  the  said 

E.  F.  within days  execute  and  deliver  to  the  complainant  a 

good  and  sufficient  deed  in  fee  simple  with  covenar>ts  of  general 
warranty  for  the  lands  in  said  bill  mentioned.  II,  That  the  said  C. 

D.  within days  pay  to  the  said  complainant  the  sum  of • 

dollars,  the  residue  of  the  purchase  money  in  said  bill  mentioned, 
and  in  default  thereof  that  execution  issue  therefor  as  upon  judg- 
ments at  law.    III.  That  each  of  said  defendants  within days 

pay  one  half  the  costs  of  this  suit.    ' 


Decree  for  specific  performance. 

This  cause  came  on  to-be  heard  upon  the  bill,  answer,  replication 
exhibits  and  testimony,  and  was  argued  by  counsel,  on  consider- 
ation whereof,  it  is  ordered  and  decreed,  that  the  said  C.  D.  with- 
in ' days,  shall  convey  the  premises  in  the  bill  mentioned  to  the 

said  A.  B.  in  fee    simple,  ivith  covenants  of  general  warranty,  and 

that  within  days  the  said  C.  D.  pay  the  costs  of  this  suit,  and 

in  default  of  such  payment  that  execution  issue  therefor  as  upon 
judgments  at  law. 


costs  recovered  at  law  and  interest  since  the  rendition  of  the  judgment, 
with. five  per  cent,  penalty  on  the  amount  of  the  debt  or  damages  and  in- 
terest which  may  have  accrued  :  If  however,  the  decree  be  taken  in  the 
Svpreme  Court,  upon  an  appeal  by  the  complainant  from  a  decree  of  the 
Court  of  Common  Pleas,  the  blank  is  to  be  filled,  with  the  debt  or  damages, 
interest  and  costs,  which  were  recovered  at  law, and  interest  since  the  ren- 
dition of  the  judgment,  with  ten  per  cent,  penalty  on  the  debt  or  damages,  and 
interest  accrued  in  favor  of  the  respondent.  Siat,  vol.  29,  p.  88,  §  44,  4-5. 


FINAL  DECREES.  323 


The  like,  2^ii'<i  confesso. 

This  cause  came  on  to  be  heard  upon  the  bill,  exhibits,  and 
testimony,  and  the  defendant  still  failing  to  appear  and  plead,  an- 
swer or  demur  to  said  bill,  the  Court,  on  consideration  of  the  premi- 
ses, do  order  and  decree,  that  the  said  bill  be  taken  for  confessed, 
and  that  the  said  C.  D.  within days  shall  convey,  &c.  {^Con- 
clude as  in  the  last  precedent.~\ 


Decree  for  perpetual  injunction  and  conveyance  of  keal 

ESTATE. 

This  cause  came  on  to  be  heard  upon  the  bill,  answer,  replica- 
tion, exhibits  and  testimony,  and  was  argued  by  counsel,  on  con- 
sideration whereof,  it  is  ordered  and  decreed,  that  the  injunction 
granted  in  this  cause  be  and  the  same  is  hereby  made  perpetual, 

and  that  the  said  C.  D.  within days,  by  deed  duly  executed, 

shall  convey  to  the  said  A.  B.  in  fee  simple,  all  the  estate,  either  in 
law  or  equity,  which  the  said  C.  D.  has,  in  the  premises  in  the  said 
bill  mentioned,  being,  &c.  which  deed  the  said  C.  D.  within  the 
time  above  limited  shall  deliver  to  the  Clerk  of  this  Court  for  the 
use  of  the  said  A.  B.  and  it  is  further  ordered  that  the  said  C.  D 

pay  the  costs  of  this  suit  within days  and  in  default  thereof 

that  execution  issue  therefor  as  upon  judgments  at  law. 


324     INTERLOCUTORY  DECREES  AND  ORDERS. 


'   '    Interlocutoky  Decrees  and  Okders. 

Where  a  reference  is  made  to  a  Master  to  ascertain  facts  upon 
which  the  final  decree  is  to  be  founded  ;  as  in  cases  of  account, 
questions  of  title,  &c.  the  decree  is  always  interlocutory.  So, 
where  the  Court  thinks  proper  to  direct  an  issue,  and  in  various 
other  cases.  Many  occasions  intervene  when  it  becomes  neces- 
sary to  take  some  order,  touching  the  prosecution  of  the  cause, 
process,  &c.  These  orders  are,  in  general,  granted  upon  motion 
of  the  plaintiff  or  defendant,  and  are  sometimes  allowed,  of  course, 
under  the  general  rules  of  the  Court,  and  sometimes  upon  affidavit 
of  particular  circumstances.  Motions  of  this  kind  are  generally 
addressed  to  the  sound  discretion  of  the  Court,  and  the  facts  upon 
which  they  are  founded,  must  be  disclosed  to  the  Court,  by  affida- 
vit or  otherwise.  The  facts  upon  which  the  order  is  made,  or 
the  reasons  moving  the  Court  thereto,  need  not  be  embodied  in  the 
order.  See,  Decrees,  ante.  320.  The  facts,  however,  should 
always  be  put  upon  the  record,  either  in  the  form  of  an  affidavit, 
or  in  some  other  manner,  otherwise  the  proceedings  may  be  liable 
to  be  set  aside  upon  bill  of  review. 


No.  1.     Order  for  leave  to  amend  bill. 


In  Chancery. 


On  motion  to  the  Court,  by  Mr. 
O.  his  counsel,  the  plaintiff  has  liberty  to  amend  his  bill  within 
— —  days  upon  payment  of  costs  in  respect  thereof. 


INTERLOCUTORY  DECREES  AND  ORDERS.     325 


No.  2.     Order  for  appointment  of  Guardian  ad  litem. 

On  motion  to  the  Court,  by  Mr.  O.  counsel  for  the  plaintiff,  it  is 
ordered,  that  E.  F.  be  appointed  guardian  ad  litem,  to  the  infant 
defendants,  G.  H.  and  T.  W.  and  thereupon  the  said  E.  F.  appeared 
in  open  Court,- and  accepted  said  appointment.    See,  ante.  p.  281. 


No.  3.     Demurrer  or  Plea  overruled,  leave  to  answer,  &c. 


This  cause  came  on  to  be  heard  upon  the  demurrer,  or,  plea, 
put  in  by  the  defendant  C.  D.  to  the  plaintiff's  bill,  and  was  argued 
by  counsel ;  on  consideration  whereof,  the  Court  held  the  said 
demurrer,  or,  plea,  to  be  insufficient,  and  order  the  same  to  be 
overruled,  with  costs ;  and  thereupon,  on  motion  to  the  Court  by 
Mr.  S.  his  counsel,  the  defendant  has  liberty  to  answer  said  bill 
within days. 


Injunction  allowed  by  Court. 

On  motion  to  the  Court  by  Mr.  O.  counsel  for  the  plaintiff,  it  is 
ordered,  that  an  injunction  be  allowed,  as  prayed  for  in  the  bill, 
and  that  the  plaintilf  give  bond  and  security  to  the  defendant  in 

the  sum  of dollars,  conditioned  according  to  law.    See,  ante. 

308. 


Injunction  allowed  by  a  Judge  in  vacation. 

I  allow  an  injunction  as  prayed  for  in  this  bill,  and  order  the 
plaintiff  to  give  bond  and  security  to  the  defendant  in  the  sum  of 
dollars,  conditioned  according  to  law.    See,  ante.  308. 


:m>    INTERLOCUTORY  DECREES  AND  ORDERS. 


No.  4.     Injunction  dissolved,  and  cause  continued. 

This  cause  came  on  to  be  heard  upon  the  defendants  answer  to 
the  plaintiff's  hill,  or,  upon  tJie  ■plaintijf"' s  replication  to  the  de- 
fendants answer,  and  was  argued  by  counsel ;  on  consideration 
whereof,  the  Court  held  the  equity  of  the  plaintiff's  bill  to  be  de- 
nied by  the  defendant's  answer,  and  thereupon  do  order,  that  the 
injunction  hereinbefore  granted,  stand  absolutely  dissolved ;  where- 
upon, on  motion  to  the  Court,  by  Mr.  S.  counsel  for  the  defendant? 
it  is  ordered,  that  this  cause  be  continued  until  next  term,  at  the 
defendant's  costs. 

No.  5.     Order,  nunc  pro  tunc. 

On  motion  to  the  Court  by  Mr.  O.  counsel  for  the  plaintiff,  it  is 
ordered  that  the  following  order,  to  wit,  "  That,  &c."  made  in  this 
cause,  at  the  last  term  of  this  Court,  but  by  mistake  omitted  to 
be  entered,  at  that  term,  be  entered  now  as  of  the  last  term. 

No.  6.     Order  to  jiake  an  Election. 

On  motion  to  the  Court  by  Mr.  S.  counsel  for  the  defendant,  and 
it  appearing  to  the  Court  that  the  plaintiff  is  prosecuting  the  de- 
fendant both  at  law  and  in  this  Court,  for  one  and  the  same  matter; 

it  is  therefore  ordered,  that  the  plaintiff,  within days,  make 

his  election  m  which  Court  he  will  proceed;  and  if  he  shall  elect 
to  proceed  in  this  Court,  then  his  proceedings  at  law  are  stayed 
by  injunction;  but  if  he  shall  elect  to  proceed  at  law,  or  in  default 
of  such  election  by  the  time  aforesaid,  then  the  plaintiff's  bill  is 
from  thenceforth  to  stand  dismissed,  with  costs. 

No.  7.     To  ADD  A  Defendant  to  a  Bill. 

On  motion  to  the  Court,  by  Mr.  O.  liis  counsel,  the  plaintiff  has 
liberty  to  insert  into  his  bill  the  name  of  X.  Y.  with  apt  words 
to  charge  him  as  defendant  thereto. 


INTERLOCUTORY  DECREES  AND  ORDERS.  32' 


No.  8.      Order  for  the  discharge  of  a  suitor  arrested 
ON  leaving  the  Court. 

Complaint  being  this  day  made  to  the  Court  by  Mr.  O.  counsel 
for  the  plaintiff"  in  this  cause,  that  on  yesterday  the  plaintiff"  A.  B. 
on  leaving  this  Court,  was  arrested;  and  the  said  A.  B.  being  pre- 
sent in  Court,  in  the  custody  of  the  Sheriff"  of  this  County,  who 
arrested  him,  and  the  said  A.  B.  being  sworn  and  examined,  and 
deposing  that  h3  is  the  plaintiff"  in  tliis  cause,  and  that  on  his  return 
and  before  he  got  home,  he  was  arrested  by  the  said  Sheriff"  at  the 
suit  of  H.  Y.  for  a  debt  of dollars,  and  the  writ  being  pro- 
duced in  Court ;  it  is  thereupon  ordered,  that  the  said  A.  B.  be 
forthwith  discharged  out  of  custody. 


Receiver  appointed  with  liberty  to  let  the  Estate  with 

THE    approbation    OF   THE    CoURT. 


On  motion  to  the  Court  by  Mr.  O.  counsel  for  the  plaintiff",  it  is 
ordered,  that  this  cause  be  referred  to  E.  F.  Master  Commissioner 
of  this  Court,  to  appoint  a  proper  person  to  be  receiver  of  the  rents, 
and  profits  of  the  real  estate  mentioned  in  the  bill,  and  to  allow  him 
a  rcas()nai)le  compensation  for  his  care  and  pains  tiicrein;  such  per- 
son so  to  be  appointed  receiver,  first  giving  security  to  be  approved 
by  the  said  Master,  duly  and  annually  to  account  for  and  i)ay,  what 
he  shall  so  receive,  as  this  Court  siiall  direct ;  and  the  tenants  of 
said  estate  are  to  attorn  and  pay  their  rents  in  arrear  and  growing 
rents  to  such  receiver,  who  is  at  liberty  to  let  the  said  estate  from 
time  to  time,  with  the  a})probatiou  of  this  Court,  as  there  shall  be 
occasion. 


Reference  to  a  Master  on  exceptions  to    answer  for  in- 
sufficiency. 


On  motion  1o  the  Court  by    Mr.  O.  counsel  for  the  jilaintifl", 
It  is  ordered  that  this  cause  be  rclerrcd  to  V,.  F.  Master  Commis- 


328  INTERLOCUTORY  DECREES  AND  ORDERS. 

sioner  of  this  Court,  to  look  into  tlie  plaintiff's  bill,  the  defendant's 
answer,  and  the  exceptions  taken  thereto,  and  certify  whether  the 
said  answer  be  sufficient  in  the  points  excepted  to  or  not. 


The  like,  for  Scandal  and  Impertinence. 

On  motion  to  the  Court  by  Mr.  O.  counsel  for  the  plaintiff,  It 
is  ordered  that  this  cause  be  referred  to  E.  F.  Master  Commis- 
sioner of  this  Court,  to  look  into  the  plaintiff's  bill  and  defendant's 
answer,  and  certify  whether  the  said  answer  is  scandalous  and  im- 
pertinent or  not. 


Reference  to  a  Master  to  state  an  Account. 


This  cause  came  on  to  be  heard  upon  the  bill,  answer,  replica- 
tion, exhibits  and  testimony,  and  was  argued  by  counsel,  on  con- 
sideration whereof.  It  is  ordered  that  this  cause  stand  referred  to 
T.  S.  Master  Commissioner  of  this  Court  [or  to  T.  S.  who  is 
hereby  appointed  special  Master  Commissioner  for  that  purpose  j 
to  take  and  state  an  account  between  the  parties,  and  in  taking 
such  account,  the  said  Master  Commissioner  shall  be  governed 
by  the  following  rules ;  1  That,  &c.  See,  Masters  in  Chan- 
cery, ante.  313  And  it  is  furiher  ordered  that  the  said  Master 
Commissioner  proceed  to  take  said  account,  at  the  request  of  either 
party,  giving  the  adverse  party  ten  days  notice  of  the  time  and 
place  of  commencing  the  same  ;  and  it  is  further  ordered  that  the 
said  Master  Commissioner  make  liis  report  in  the  premises,  at  the 
next  term  of  this  Court,  to  which  time  this  cause  is  continued. 


Confirmation  of  Master's  Report. 

On  motion  to  the  Court  by  Mr.  O.  counsel  for  the  plaintiff,  and 
upon  producing  a  report  made  in  this  cause  by  T.  S.  Master 
Commissioner  of  this  Court,  bearing  date,  &c.      It  is  ordered  that 


INTERLOCUTORY  DECREES  AND  ORDERS.   329 

the   said  report  and  all  the   matters  and  things  therein  contained, 
do  stand  ratified  and  confirmed. 


OuDEii  FOR  Master  to  sell  real  estate. 


This  cause  caine  on  to  be  heard  upon  the  bill,  answer,  replica- 
tion, exhibits  and  testimony,  and  was  argued  by  counsel,  on  con- 
sideration whereof,  it  is  ordered,  that  T.  S.  Master  Commissioner 
of  this  Court,  [or,  T.  S.  who  is  hereby  appointed  special  Master 
Commissioner  for  that  purpose^  proceed  to  cause  the  lands  and 
tenements  in  the  bill  described,  to  be  appraised,  advertised  and 
sold,  at  public  auction,  as  upon  executions  at  law,  and  that  the 
money  arising  from  such  sale  he  bring  into  Court  at  the  next  term, 
to  which  time  this  cause  is  continued. 


Sale  by^Master  confirmed  and  Defd  ordered. 

On  motion  to  the  Court,  by  Mr.  O.  counsel  for  the  plaintiff", 
and  upon  producing  a  report  made  in  this  cause,  by  T.  S.  Mas- 
ter Commissioner  of  this  Court,  bearing  date,  &c.  it  is  ordered 
that  said  report,  and  all  the  matters  and  things  therein  contained, 
do  stand  ratified  and  confirmed  :  and  it  is  further  ordered,  that  the 
said  Master  Commissioner,  convey  the  said  lands  and  tenements, 
so  sold  as  aforesaid,  to  the  said  T.  W.  in  fee  simple. 


Leave  to  file  Bill  of  Review  on  discoveuv  of  New  Matter. 

On  motion  to  the  Court  by  Mr.  O.  his  counsel,  A.  B.  has  liberty 
to  file  a  bill  of  review  upon  a  decree  in  Chancery  rendered  at  the 
term  of  this  Court  A.  D. wherein  C  D.  was  complain- 
ant and  the  said  A.  B.  defendant,  and  thereupon  the  said  A.  B.  filed 
his  bill  of  review   accordingly. 

Kr 


380  INTERLOCUTORY  DECREES  AND  ORDERS. 


Decree  reversed  on  Bill  or  Review  in  Common  Plea». 

This  cause  came  on  to  be  heard  upon  the  demurrer  of  the  de- 
fendant to  the  bill  of  the  plaintiff,  and  was  argued  by  counsel ;  on 
consideration  whereof,  it  is  ordered  and  decreed,  that  the  decree, 
in  said  bill  of  review  mentioned,  be  and  the  same  is  hereby  rever- 
sed ;  *  and  it  is  further  ordered  that  the  original  cause,  in  said  bill 
of  review  mentioned,  be  forthwith  reinstated  upon  the  Chancery 
docket  of  this  Court  to  be  proceeded  in  as  if  no  decree  had  ever 
been  rendered  therein,  and  it  is  further  ordered  that  the  said  C.  D. 

pay  the  costs  of  this  suit  within days  or  in  default  thereof,  that 

execution  issue  therefor  as  upon  judgments  at  law. 

Decree  of  Coivimon  Pleas  reversed  in  Supre3ie   Court  on 
Bill  of  Review. 


[Proceed  as  in  the  lust  precedent  to  the  *  — and  it  is  further  or- 
dered that  the  original  cause  in  said  bill  of  review  mentioned,  be 
remanded  to  the  Court  of  Common  Pleas  to  be  proceeded  in  as  if 
no  decree  had  ever  been  rendered  therein  ;  and  it  is  further  order- 
ed that  the  said  C.  D.  pay    the  costs  of  this  suit  within days 

and  in  default  thereof  that  execution  issue  therefor  as  upon  judg- 
ments at  law";  and  it  is  further  ordered  that  a  special  mandate  be 
sent  to  the  said  Court  of  Common  Pleas  to  carry  this  decree  into 
execution. 


The  like,  and  cause  continued,  &c.  !?«  the  Supreme  Court. 
2  Ohio  Rep.  372.  Oiiio  Conds.  405. 

[Proceed  as  above  to  the  *  —  and  thereupon  on  motion  of  the 
complainants,  it  is  further  ordered,  that  this  bill  of  review,  as 
against  C.  D.  be  considered  and  held  a  suplemenial  bill,  and  that 
as  to  the  said  C.  D.  the  cause  stand  for  plea  or  answer  to  be  filed 

within  days  after  this  cause    shall  be  re- docketed  in  the   Su. 

preme  Court ;  and  as  to  the  other  defendants,  it  is  ordered  that 


INTERLOCUTORY  DECREES  AND  ORDERS.      831 

the  cause  stand  for  further  proceedings  in  the  same  manner  as  if 
no  decree  had  ever  been  pronounced ;  and  thereupon  tlie  whole 
case  is  continued  to  the  next  term. 


Decree    op  Common  Pleas  affirmed  in  Supreme    Court  05 
Bill  of  Review. 

This  cause  came  on  to  be  heard  upon  the  demurrer  of  the  defen- 
dant to  the  bill  of  the  plaintiff,  and  was  argued  by  counsel,  on  con- 
sideration whereof,  it  is  ordered  and  decreed,  that  the  original 
decree,  in  the  said  bill  of  review  mentioned,  be  and  the  same  is 
hereby  in  all  things  affirmed ;  and  it  is  further  ordered  that  the 
said  C.  D.  pay  the  costs  of  this  suit  within  days,  or  in  de- 
fault thereof  that  execution  issue  therefor  as  upon  judgments  at 
law;  and  it  is  further  ordered  that  a  special  mandate  be  sent  dowm 
to  the  said  Court  of  Common  Pleas  to  carry  this  decree  into  ex- 
ecution. 


Decree  of    Common    Pleas    reversed    and    final  decree  in 
Supreme  Court. 


This  cause  came  on  to  be  heard  upon  the  demurrer  of  the  de- 
fendant to  the  bill  of  the  plaintiff,  and  was  argued  by  counsel,  on 
consideration  whereof,  it  is  ordered  and  decreed  that  the  original 
decree  in  said  bill  of  review  mentioned,  be  and  the  same  is  hereby 
reversed,  and  thereupon  this  Court  proceeding  to  render  such  de- 
cree as  ought  to  have  been  rendered  by  the  said  Court  of  Com- 
mon Pleas,  do  further  order  and  decree,  that  the  said  C.  D.  within 
days  shall  convey  the  premises  in  the  said  original  hill  mention- 
ed to  the  said  A-  B.  in  fee  simple,  with  covenants,  ^-c.  and  that  with- 
in   days  the  said  C.  D.  pay  the  costs  of  this  suit,  and  in  default 

thereof  that  execution  issue  therefor  as  ujxm  judgments  at  law ; 
and  it  is  furthei  ordered  that  a  special  mnndalc  be  sent  down  to 
the  said  Court  of  «.  Common  Pleas  to  carry  this  decreg  into  «x». 
cution. 


332  INTERLOCUTORY  DECREES  AND  ORDERS. 


Depositions  suppressed  and  cause  continued. 


On  motion  to  the  Court  by  Mr.  O.  counsel  for  the  plaintiff,  it  is 
ordciedthat  the  depositions  of  E.  F.  &c.  filed  in  this  cause,  by 
the  defendant,  be  suppressed ;  and  thereupon  on  motion  of  Mr.  S. 
counsel  for  the  defendant,  it  is  ordered  that  this  cause  be  continued 
at  the  costs  of  defendant. 


Order  for  Publication  of  Notice  to  non-residents. 

On  motion  to  the  Court  by  Mr.  O.  counsel  for  the  plaintiff,  it  is 
ordered,  that  notice  of  the  pendency  of  this  suit  and  of  the  sub- 
stance of  the  bill  and  prayer  thereof,  be  published  for con- 
secutive weeks  in newspaper  previous  to  the  next  term  of 

this  Court,  to  which  time  this  cause  is  continued. 

Order  for  a  New  Trial  at  Law. 

This  cause  came  on  to  be  heard  upon  the  bill,  answer,  replica- 
tion, exhibits,  and  testimony,  and  was  argued  by  counsel,  on  con- 
sideration whereof,  it  is  ordered,  that  the  cause  in  the  said  bill 
mentioned,  wherein  the  said  A.  B.  was  plaintiff,  and  the  said  C.  D. 
defendant,  be  entered  upon  the  law  docket  of  this  Court,  and  stand 
for  trial  upon  the  merits  at  the  next  term;  and  it  is  further  ordered, 
that,  upon  such  trial,  the  said  bill,  ansM'er,  replication,  exhibits,  and 
testimony,  as  well  as  the  depositions  heretofore  taken  in  said  cause, 
may  be  used  as  evidence  by  either  party;  and  it  is  further  ordered, 
that  this  cause  be  continued  for  further  proceedings. 

Issue  out  of  Chancery,  devisavit  vel  non.    5  Ohio  Rep.  279. 

It  being  made  to  appear  to  the  Court,  that  the  complainant  in 
this  case,  seeks  to  set  aside  a  certain  paper  writing,  purporting  to 


INTERLOCUTORY  DECREES  AND  ORDERS.     333 

be  the  last  will  and  testament  of  T.  G.  late  of  the  County  of 

deceased,  which  lias  been  admitted  to  probate,  according  to  the 
statute  in  such  case  made  and  provided;  it  is  ordered,  that  an  issue 
at  law  be  made  up  between  the  parties,  to  try  the  validity  of  said 
will,  and  transmitted  to  the  Supreme  Court  of  said  County  next  to 
be  holden  therein,  to  ascertain  by  the  verdict  of  a  Jury,  whether 
said  writing  is  the  valid  last  will  and  testament  of  the  said  T.  G. 
or  not;  and  that,  in  making  the  said  issue,  the  respondents  file  a 
a  declaration  affirming  the  said  paper  writing  to  be  the  last  will 
and  testament  of  the  said  T.  G.  And  the  said  complainant  shall 
plead  to  the  said  declaration,  that  the  said  paper  writing  is  not 
the  last  will  of  the  said  T.  G.  deceased.  It  is  further  ordered, 
that  either  party  may  use  on  the  trial  of  said  issue  at  law,  any  of 
the  depositions  properly  taken,  and  now  on  file  in  tliis  cause,  which 
contain  relevant  and  competent  evidence,  provided,  the  witnesses 
whose  depositions  are  offered  at  the  trial,  are  deceased,  aged,  in- 
firm, or  without  the  jurisdiction  of  the  Court,  as  depositions  taken 
de  bene  esse,  are  allowed  to  be  read  in  cases  at  law.  It  is  further 
ordered,  that  the  motion  of  the  respondent,  for  leave  to  read  his 
own  answer  in  evidence,  be  denied,  and  that  this  cause  be  con- 
tinued. 


334         COMPLETE  RECORD  IN  CHANCERY. 


Complete  Record  in  Chancery. 


After  a  cause  in  Chancery  is  determined,  it  is  the  duty  of  the 
Clerk  to  enter,  in  a  book  to  be  kept  for  that  purpose,  the  bill, 
answer,  pleadings,  exhibits,  reports,  decretal  orders,  statement  of 
facts  found  by  a  jury,  or  agreed  by  the  parties,  and  the  final  de- 
cree. Stat.  vol.  29, p.  86,  §  36=     The  form  may  be  thus: 


Proceedings  in  Chancery,  before  the  Coiirt  of  Common  Pleas, 

within  and  for  the  County  of  Ross  and  State  of  Ohio,  on  the 

day  of A.  D. [date  of  the  final  decree']  in  a  certain 

cause  wherein  A.  B.  was  complainant  and  C.  D.  defendant. 


Be  it  remembered,  that  heretofore,  to  wit,  on  the 
first  day  oi  June,  A.  D.  1832,  A.  B.  filed  in  the  office 
of  the  Clerk  of  said  Court  of  Common  Pleas,  a  certain 
bill  in  Chancery,  in  the  words  and  figures  following,  to 
wit:  To  the  Court  of  Common  Pleas,  within  and  for  ^i^^- 
the  County  of  Ross  and  State  of  Ohio,  in  Chancery  sit- 
ting: A.  B.  of  the  said  County  of  Ross,  represents, 
that  C.  D.  of  tbe  same  County,  (and  whom  your  ora- 
tor prays  may  be  made  defendant  to  this  bill)  on  or 
about  the  10th  day  of  May,  A.  D.  1830,  was  seized 
in  fee-simple,  of  a  certain  tract  of  land,  situate  in  said 
County  of  Ross  and  which  is  hereinafter  more  par- 
ticularly described;  and  the  said  C.  D.  being  desirous 
to  dispose  of  said  lands,  entered  into  an  agreement 
with  your  orator,  for  the  sale  thereof,  to  him,  and 
which  agreement  was  reduced  to  writing,  and  signed 
by  the  said  C.  D.  and  your  orator,  and  is,  in  sub- 
stance as  follows :  {Proceed  in  this  manner  to  copy 
the  bill,  verbatim]  a  copy  of  which  agreement  is 
herewith  filed,  and  made  a  part  of  this  bill.     Your 


COMPLETE  RECORD  IN  CHANCERY.  335 

orator  further  represents,  that  he  has,  in  all  respects, 
complied  with  the  terms  and  conditions  of  the  said 
agreement,  on  his  part  to  be  performed,  and  that  he. 
has  applied  to  the  said  C.  D.  and  requested  him  spe- 
cifically to  perform  his  part  of  the  said  agreement, 
but  the  said  C.  D.  hath  hitherto  wholly  neglected  and 
refused  so  to  do.  Your  orator  therefore  prays,  that  ^^7/. 
the  writ  of  subpoena  may  issue  against  the  said  C.  D. 
and  that  he  may  be  compelled  to  answer  all  and  sin- 
gular the  premises,  and  that  on  the  final  hearing  of 
tliis  cause,  the  said  C.  D.  may  be  decreed  specifically 
to  perform  his  said  agreement,  or  if  it  should  appear, 
that  he  is  unable  to  do  so,  that  he  may  be  decreed 
to  repay  to  your  orator  his  purchase  money  afore- 
said, with  interest,  and  such  damages  as  your  orator 
may  have  sustained  by  reason  of  the  premises,  and 
that  your  orator  may  have  such  other  and  further 
relief,  in  the  premises,  as  equity  and  good  conscience 
may  require.  T.  B.  SoL  for  cojnplt.  The  exhibit 
referred  to  in  the  bill  and  filed  therewith,  is  in  the 
words  and  figures  following,  to  wit :  Articles  of  Exhibits. 
agreement,  &c.  [Here  copy  the  exhibits,  verbatini]  ; 
and  thereupon  the  following  subpoena  was  issued  out 
of  the  Clerk's  office  aforesaid,  to  wit :  [Seal.]  The 
State  of  Ohio,  Ross  County,  ss.  To  the  Sheriff"  of  Subpasna. 
Ross  County,  Greeting :  We  command  you  to  sum- 
mon C.  D.  to  appear  before  our  Court  of  Common 
Pleas,  of  the  County  of  Ross,  at  the  Court-house,  on 
the  first  day  of  their  next  term,  to  answer  a  petition 
in  Chancery,  exhibited  against  him  by  A.  B.  and  this 
he  shall  in  no  wise  omit,  under  the  penalty  of  one 
thousand  dollars,  and  have  you  then  there  this  writ. 
Witness,  T.  T.  President  Judge  of  our  said  Court, 
at  the  Court-house,  this  1st  day  of  June,  A.  D,  1830. 
Attest.  F.  G.  Clerk  of  Ross  Com.  Pleas.  And  af- 
terwards, to  wit,  on  the  1st  day  of  September,  A.  D. 
1630,  the  Sheriff'  of  said  County  of  Ross,  returned 
the  said  writ  of  subpoena  endorsed  as  follows,  to  wit:  ^''c'ijT  s  re- 
served, by  delivering  a  copy  to  the  said  C.  D.  on  the  "^' 
lOthday  of  May,  A.  D.  1830.    T.  X.  Sheriff  of /?o« 


33G  COMPLETE  RECORD  IN  CHANCERY. 

County.     And  afterwards,  to  wit,  at  the  July  term  Continu- 
of  said  Court,  A.  D.  — - —  this  cause,  on  motion  of  the      ance. 
said  A.  B.  was  continued.    And  afterwards,  to  wit,  on 
the  20th  day  of  October,  A.  D.  1830,  the  said  C.  D. 
filed  in  the  office  of  the  Clerk  aforesaid,  a  demurrer 
to  said  bill,  in  the  words  and  figures  following,  to 
wit :  The  demurrer  of  C.  D.  defendant,  to  the  bill  of  Dernurrer. 
A.  B.  complainant.     The   said   C.   D.  comes  and 
demurs  to  the  said  bill  of  the  said  A.  B.  and  for  cause 
of  demurrer  shows,  that  the  said  A.  B.  by  his  said 
bill,  has  not  made  such  a  case  as  entitles  him,  in  a 
Court  of  equity,  to  any  discovery  from  this  defend- 
ant, or  relief  against  him :    Wherefore,  and  for  other 
good  causes,  the  said  C.  D.  demurs  to  the  said  bill- 
and  prays  the  judgment  of  this  Court,  whether  he 
shall  be  compelled  to  make  any  other  or  further  an- 
swer thereto,  and  that  he  may  be  hence  dismissed, 
with  his  costs.     And  afterwards,  to  wit,  on  the  15th 
day  of  November,  A.  D.  1830,  the  said  A.  B.  filed  in 
the  office  of  the  Clerk  aforesaid,  a  joinder  in  demur- 
rer, in  the  words  and  figures  following,  to  wit :    And 
the  said  A.  B.  says,  that  his  said  bill,  and  the  matters  -finder  in 
therein  contained,  are  sufficient  to  entitle  him  to  the 
discovery  and  relief  prayed  for  in  said  bill :    Where- 
fore, he  prays  that  the  demurrer  of  the  said  C.  D. 
may  be  overruled,  and  that  the  discovery  and  relief 
prayed  for  in  said  bill,  may  be  granted  him,  &c.    By 
W.  T.  his  Sol.  And  afterwards,  to  wit,  at  the  March 
term  of  said  Court,  A.  D.  1831,  this  cause,  on  mo-   Continu- 
tion  of  the  said  CD.  was  continued.  And  afterwards,       (^nce. 
to  wit,  at  the  July  term  of  said  Court,  to  wit,  on  the 
10th  day  of  July,  A.  D.  1831,  this  cause  came  on  to 
be  heard  upon  the  demurrer  to  said  bill,  and  was  ar-  Demurrer 
gued  by  counsel;  on  consideration  whereof,  the  Court  "^^'"^  ulea. 
held  the  said  demurrer  to  be  insufficient,  and  ordered 
the  same  to  be  overruled  with  costs,  and  thereupon 
the  said  C.  D.  moved  the  Court  for  leave  to  answer 
said  bill,  and  filed  in  the  office  of  the  Clerk  aforesaid,  ^'^^^^7^  M 
an  affidavit,  in  the  words  and  fiorures  following,  to   „„^« 
wit:    A.  B.  vs.  C.  D.  In  Chancery.     The  said  C.  D. 


COMPLETE  RECORD  IN  CHANCERY 


337 


makes  oath  and  says,  that  the  demurrer  by  him  filed 
in  this  cause,  was  not  filed  for  the  purpose  of  delay, 
and  that  as  he  is  advised  and  verily  believes,  he  has 
a  meritorious  defence  to  the  same.  C.  D.  Sworn  to^ 
and  subscribed  in  open  Court,  July  10th,  1831.  T. 
B.  Clerk.  And  thereupon,  liberty  to  answer  said 
bill  in  sixty  days,  was  granted  by  the  Court  to  the 
said  C.  D.  And  thereupon  this  cause  was  continued 
on  the  motion,  and  at  the  costs  of  the  said  C.  D.  And 
afterwards,  to  wit,  on  the  1st  day  of  August,  A.  D. 
1831,  the  said  C.  D.  filed  in  the  office  of  the  Clerk 
aforesaid,  an  answer  to  the  said  bill,  in  the  words  and 
figures  following  to  wit :  The  answer  of  C.  D. 
defendant  to  the  bill  of  A.  B,  complainant.  The  said 
C  D.  comes,  and  for  answer  to  the  said  bill  of  the 
said  A.  B.  says,  that,  &c.  [Ilcre  irisert  the  ansicer, 
verbatim,  cmd  cvhibits,  if  any,  in  the  sarne  manner, 
as  exhibits  filed  with  the  bill,  also,  the  replication, 
interlocutory  orders,  reports  of  the  master,  plats, 
surveys,  (J-c.  ^'-c.  i7i  their  j)roper  order.']  And  after- 
wards, to  wit,  on  the  10th  day  of  September,  A.  D. 
1831,  the  said  A.  B.  filed  in  the  office  of  the  Clerk 
aforesaid,  certain  depositions  in  the  words  imd  figures 
following,  to  wit :  [//ere  copy  the  depositions  of  the 
complainant,  verbatim.]  And  afterwards,  to  wit, 
on  the  20th  day  of  September  aforesaid,  the  said  C. 
D.  filed  in  the  office  of  the  Clerk  aforesaid,  certain 
depositions,  in  the  words  and  figures  following,  to 
wit:  [Here  copy  tliem,  verbatim.]  (o)  And  after- 
wards, to  wit,  on  the  day  an,d  year  first  aforesaid, 
this  cause  came  on  to  bo  heard  upon  the  bill,  answer, 
replication,  exhibits,  and  testimony,  and  was  argued 
by  counsel;  on  consideration  whereof,  it  was  ordered 

and  decreed,  that  the  said  C.  1).  within  da}s, 

should  convey  the  promises  in  the  said  bill  mentioned. 


A  (Ji davit  of 
merits. 


Liberlr  to 
answer  in 
fiO  days. 


Answer. 


Depositions 
ofcomplain 
ant. 


Depositions 
of  defend- 
ant. 


Final  de- 
cree. 


(a)  The  Statute  does  not  r0{iulrc  tlic  depositions  to  be  recorded,  but  it 
should  always  ho  dono,  as  ihoy  I'orni  an  indispensublo  part  of  the  record 
upon  a  bill  of  review.    Ske,  a»/c.  '.M)0,  n.  [a). 

Ss 


338  COMPLETE  RECORD  IN  CHANCERY. 

to  the  said  'A.  B,  Jn  fee-simple,  with  covenants  of 

general  warranty,  and  that,  within  days,  the 

said  C.  D.  should  pay  the  costs  of  this  suit,  and  in 
default  of  such  payment,  that  execution  should  issue 
therefor,  as  upon  judgments  at  law.  [JPbr  the  mode 
of  authenticating  records,  SfC.  See,  Complete  Record 
in  Assumpsit.^ 


HABEAS  CORPUS.  339 


Habeas  Corpus. 
Form  of  application  for  Habeas  Corpus. 

To  A.  B.  one  of  the  Judges,  &c.  (a) 

C.  D.  of,  &c.  (h)  represents,  that  he 
is  imprisoned  or  detained  by  E.  F.  without  any  legal  authority,  (c) 
he  therefore  prays  that  a  writ  of  habeas  corpus  may  be  issued  to 
the  said  E.  F.  and  that  he  may  be  discharged  from  said  imprison- 
ment. 

The  above  named  C.  D.  being  duly  sworn,  says  that  the  matters 
and  things  set  forth  in  the  above  application,  are  true. 

C.  D. 

Sworn  to,  and  subscribed,  before  me,  this day  of 

A.  D. . 

T.   X.  Jus.  Peace. 
The  allowance  is  endorsed  on  the  back  of  the  application  thus : 

Allowance  of  Habeas  Corpus  by  single  Judge. 

FiOt  a  writ  of  habeas  corpus  issue  on  the  within   application, 


(tt)  The  application  may  bo  madf?  to  any  .Tiulire  of  the  Snpromo  Toiirt,  oi 
any  I'rosidcMit  or  As.-ociatc  .Iu(l<fe  (trUn^  ( "ourt  of  ('tunnion  IMcas.  Slat.  vol. 
20,  p.  If)4,  ()  1.  Or  to  tlic  Supremo  (lourt  or  ('ourt  of  (Jomniou  Pleas  in 
term  time.    J/>ii{,  p.  TjH,  J  3,  4. 

{/))  The  application  may  be  niado  by  the  person  imprisoned,  or  by  any 
other  person  in  his  beiialf.    f/>iil,  ji.  KVl,  j  1, 

(r)  If  the  applicant  be  imprisoned  under  legal  prorcpsjic  must  set  forth, 
in  his  api)licati(m,a  copy  of  the  commitment,  or  cause  of  his  detention;  and 
in  such  case  un  affidavit  is  unnecessary.    I/iid. 


340  HABEAS  CORPUS. 

returnable  before  me  at on  the day  of instant,  at 

ten  o'clock  A.  M. 

A.  B.  Judge,  SfC. 

To  the  Clerk  of Common  Picas,  {a) 

Dated,  &c. 

If  the  writ  be  allowed  in  term  time,  the  entry  is  made  upon  the 
Journal  thus: 

Allowance  of  Habeas  Corpus  in  term  time. 

C.  D.  this  Jay  came  into  Court  and  filed  his  application  for  a 
writ  of  habeas  corpus ;  on  consideration  whereof,  it  is  ordered, 
that  a  writ  of  habeas  corpus  issue  to  E.  F.  of,  &c,  commanding 
him  to  have  the  body  of  the  said  C.  D.  together  with  the  day  and 

cause  of  his  caption  and  detention,  before  this  Court  on  the 

day  of instant,  at  10  o'clock,  A.  M. 

Form  of  Writ  of  Habeas  Corpus. 

The  State  of  Ohio, (]!ounty,  ss. 

To  E.  F.  of,  &c. 

We  command  you,  that  the 
body  of  ('.  1).  in  your  custody  detained,  as  it  is  said,  together  with 
the  day  and  cause  of  his-  caption  and  detention,  by  whatsoever 
name  the  said  C.  D.  may  be  known  or  called,  you  safely  have, 
before  A.  B.  Judge,  ^yc.  (b)  or,  0217-  Supreme  Court,  or.  Court  of 
Comjnon  Pleas,  at on  the  day  of instant,  at  10 


(a)  The  writ  is  to  ho  issued  !.y  the  Clerk  of  that  Court,  of  which  the  per- 
son allowing  the  writ,  is  Judge.    Slat.  vol.  2;?,  ■>>.  164,  \  1. 

(h)  In  case  of  tiio  absence  or  disability  of  the  Judge  who  allowed  tlie 
writ,  it  incy  be  returned  before  some  other  Judge  of  the  same  Court.  Stat, 
vol.  29,  p.  IGI,  \  -J. 


HABEAS  CORPUS.  341 

o'clock  A.  M.  to  abide  such  order  as  the  said  A.  B.  or  said  Court 
of  Common  Pleas,  or,  Supreme  Court,  shall  make  in  this  behalf ; 
hereof  fail  not,  and  bring  this  writ  with  you. 

Witness,  T.  T.  President  Judge  of  our  Court  of  Common 
Pleas,  aforesaid,  this day  of A.  D.  — . 

Attest. 

F.  B.  Clerk. 


The  writ  is  served  by  delivering  the  original  to  the  person  to 
whom  it  is  directed.  This  may  be  done  by  any  disinterested  per- 
son. A  copy  of  the  original  should  be  retained  by  the  person 
serving  the  writ,  in  order  to  furnish  proper  evidence  for  further 
proceedings,  should  the  original  writ  be  disobeyed. 

The  writ  must  be  returned  at  the  proper  time  and  place,  together 
with  the  body ;  and  the  day  and  cause  of  caption  and  detention  are 
endorsed  thus: 


Return  of  Habeas  Corpus. 

The  within  named  E.  F.  hereby  certifies  to  the  within  named 
J].  B.  or,  to  the  within  named  Supreme  Court,  or,  Court  of  Com- 
mon Pleas,  that  the  within  named  C.  D.  was  taken  into  the  custody 

of  the  said  E.  F.  on  the day  of A.  D. and  is  now 

detained  in  his  custody,  by  virtue  of,  &c.  [Here  set  forth,  spcciji- 
calhj,  the  cause  of  detention,  such  as  legal  process,  guardianship 
under  a  will,  or  hy  appointment  of  Court,  right  of  parent,  cj-c] 

E.    F. 

Dated,  &c. 

Upon  the  return  of  tiie  wx'xX,  the  Court  or  Judge  will  examine 
into  the  cause  of  caption  and  dt;tcntion,  and  either  coniinil,  dis- 
charge, or  let  to  bail.  Stat.  vol.  :jy,  p.  KM,  §  3.  The  statute 
makes  no  provision  for  reducing  to  record,  the  proceedings  ujion 
habeas  corpus,  before  a  single  Judge  in  vacation.  In  such  cases, 
■'  -^  better  practice  seems  to  be,  to  enter  the  proper  orders,  &c.  ujion 


342  HABEAS  CORPUS. 

the  journal  of  that  Court,  of  which  the  Judge  allowing  the  writ, 
may  be  a  member;  to  be  signed  by  such  Judge,  as  in  cases  of  spe- 
cial Courts  for  the  appointment  of  administrators  and  guardians. 
Such  entry  may  be  as  follows  : 


Order  for  Discharge,  upon  Habeas  Corpus,  by  single  Judge. 

In  obedience  to  the  command  of  a  writ  of  habeas  corpus  issued 
by  me,  one  of  the  Associate  Judges  of  the  Court  of  Common  Pleas 

of  the  County  of on  the day  of A.  D. upon 

the  application  of  C.  D.  of,  &c.  E.  F  to  whom  said  writ  of  habeas 

corpus  was  directed,  appeared  before  me,  on  this day  of 

A.  D. and  brought  with  him  the  body  of  the  said  C.  D.  and 

the  said  E.  F.  having  returned  upon  said  writ,  that  the  said  C.  D. 

was  taken  into  his  custody  on  the day  of A.  D. 

and  is  now  detained  in  his  custody  by  virtue  of,  &c.  [Here  set  out 
the  return,  verbatim]  ;  and  having  examined  into  the  cause  of  said 
caption  and  detention,  it  is  ordered,  that  the  said  C.  D.  be  and  he 
is  discharged  from  the  custody  of  the  said  E.  F.  (a). 

A.  B.  Judge,  ^c. 
The  like,  by  the  Court. 


This  day,  E.  F.  to  whom  a  writ  of  habeas  corpus  was  directed 
on  Friday  last,  upon  the  application  of  C.  D.  appeared  in  open 


(a)  On  the  appearance  of  the  party,  the  Court,  in  general,  will  only  sec 
that  he  is  not  under  any  illegal  restraint;  but  in  the  case  of  a  young  lady, 
the  Court  will  order  the  tipstaff  to  wait  upon  her  home  to  her  guardian. 
Stra.  444.  A  chiid  of  nine  years  old,  was  delivered  to  her  uncle,  being 
her  testamentary  guardian.  Stra,  570.  A  boy  of  thirteen,  brouglit  up  by 
habeas  corpus  sued  by  his  father,  to  hive  him  delivered  lo  him  by  his  aunt, 
the  Court  will  deliver  him  from  his  aunt  and  let  him  go  where  he  pleases. 
Stra.  982.  Qiiere,  whether  the  Court  will  not  deliver  him  to  the  lather. 
See,   3  Bac.  Abg.  15.    1  Burr.  606.    3  Burr.  1434. 

If  the  party  be  recommitted,  say  :  "  //  is  ordered,  that  the  said  C.  D. 
bCf  and  he  hereby  is  recommitted  lo  the  custody  of  the  said  E.  F.^'  If  let  to 
bail,  say:  "//  is  ordered,  that  the  said  C.  T).  be  let  to  bail  vpon  entering 
into  a  reeog-nizance,  ivith  security,  to  the  amount  of dollars ;  and  there- 
upon, the  said  C.  D.  with  E.  F.  and  G.  H.  his  securities,  entered  into  such 
recognizance  in  the]said  sum  of dollars,  conditioned  according  to  lawJ'^ 


HABEAS  CORPUS.  343 

Court,  and  brought  with  him  the  body  of  the  said  C.  D.  and  the 
said  E.  F.  having  returned  upon  said  writ  that  the  said  C.  D.  was 

taken  into  his  custody  on  the day  of A.  D.  and 

is  now  detained  in  his  custody  by  virtue  of,  &c.  {Here  set  out  the 
return,  verbatim]  ;  and  the  Court  having  examined  into  the  cause 
of  said  caption  and  detention,  it  is  ordered,  &c.  [Conclude  as  in 
the  last  precedent.'] 


344  DEPOSITIONS. 


Depositions. 

When  the  testimony  of  any  person  is  necessary'  in  any  civil 
cause  or  matter,  pending  in  the  Court  of  Common^  Pleas  or  Supreme 
Court,  sitting  as  a  Court  of  law  or  equity,  and  such  person  resides 
out  of  the  County  where  such  cause  or  matter  is  pending,  or  shall 
intend  to  leave  the  County  before  the  time  of  trial,  or  is  ancient 
or  very  infirm,  the  deposition  of  such  person  may  be  taken  be- 
fore any  Justice,  or  Judge  of  any  Court  of  the  United  States,  or 
before  any  Chancellor,  Master  Commissioner  in  Chancery,  Justice 
or  Judge  of  any  Supreme  or  Superior  Court,  Notary  Public, 
Mayor  or  Chief  Magistrate  of  any  city  or  town  corporate,  Judge 
of  any  County  Court  or  Court  of  Common  Pleas,  or  Justice  of  the 
Peace  of  this  State,  or  of  any  of  the  United  States,  or  any  district 
or  territory  thereof;  such  officer  not  being  of  counsel  or  attorney 
to  either  of  the  parties,  or  otherwise  interested  in  the  event  of  such 
cause.  Stat.  vol.  29,  p.  123,  9  L  Before  such  deposition,  however, 
can  be  taken,  proper  notice  must  be  given  to  the  adverse  party, 
which  may  be  in  the  following  form : 


Form  of  Notice  to  take  Depositions. 


Com.  Pleas. 


Depositions  will  be  taken  in  this 

case,  by  the  plaintiff,  at in  the  town  of' County  of 

and  State  of on  the day  of next,  between  six  A. 

M.  and  nine  R  M. 

A.  B. 
Dated,  &c. 

This  notice  must  be  served  on  the  adverse  party,  his  agent  or 
attorney  of  record,  or  left  at  his  usual  place  of  abode,  at  such  time 


DEPOSITIONS.  315 

as  will  cnablo  the  adverse  party  to  attend  at  tlic  taking  of  the  de- 
pdsilions,  by  travelling  at  the  rate  of  twenty  miles  per  day,  vSun- 
days  v.'xclusive.  SUit.  vol.  29,  p.  ]24,  §  2.  Service  of  this  notice 
may  l)e  made  by  any  disinterested  person,  and  proof  of  such  ser- 
vice may,  in  general,  be  required  before  the  deposition  can  be  read. 
In  some  instances,  service  of  notice  has  been  made  by  the  party, 
and  hif)  own  onth  admitted  to  prove  sacii  service;  but,  ia  general, 
it  is  more  safj  to  cause  service  to  be  made  by  some  disinterested 
person, 

The  attendance  of  v/itnesscs  before  the  oiTicer  may  be  enforced 
by  subpoena  and  attachment.     StaL  vol.  29,  p.  124,  §  6,  7. 


Form  of  Subpos^'a  fou  Witnesses. 

The  State  of  Ohio, County,  ss. 

To  the  ShcrifF  (a)  of  said  County,  Greetujo  : 

You  are  hereby  commanded  to  summon  F.  W.  to  be  and  appear 

before  mc,  G.  II.   a  Justice  of  iha  Fcacc,  Jud'^c,  <^-c.  at on 

the day  of at  nine    o'clock,    A.    M.    then   and  there 

to  be  examined,  and  the  truth  to'«pe'ak,  in  bchaU*  of  the  pkunliff, 

in  a  certain  cause  ponding  in  the  Court  of ^vh^Jrc:n  A.  B. 

is  plaintiff,  and  C.   D.  defendant:     Ik^reof  fail   not,  under  the 
penalty  of  the  law,  and  have  you  then  there  tliis  Vvrit. 

Given  under  my  hand  and  seal,  this day  of A.  D. . 


G.  II.     [seal.] 

If  a  v.'itness,  v.-ithout  reasonable  excuse,  neglects  or  refuses  to 
appear,  according  to  tlie  command  of  the  subpoena,  an  attach- 
ment may  issue.  Stat.  vol.  20,  /?.  125,  §  7.  A  Avitness,  however, 
on  being  subpccnaeu,  mny  demand  his  j^ai/  (the  fccLi  for  a  day)  and 
if  refused  he  need  not  alt  end ;  and  so  frcm  day  to  day  he  may 


(ci)  The  subpoena  may  be  directed  to  any  sheriff  or  coustulle.    Sial.vol, 
20,  jj.  125,  412. 

T    T 


340  DEPOSITIONS. 

requrc  his  fees,  and  if  refused  he  need  not  remain  at  his  own  ex- 
pense, and  such  refusal  will  be  a  sufficient  answer  to  an  attachment. 
But  if  he  do  not  demand  his  fees,  tiic  omission  to  j)ay  them  will  not 
exonerate  the  witness.  An  attachment  will  not,  in  general,  issue 
■without personal  service  upon  the  witness. 


Form  of  Attachment. 

The  State  of  Ohio, County,   ss. 

To  the  Sheriff  of  said  County,  Greeting  : 

We  command  you,  that  without  delay  you  attach  E.  F.  so  as  to 

have  him  before  G.  11.  a  Justice  of  tie  F^acc,  Jidge,  <^c.  at 

to  answer  to  us  touching  a  contempt  v.hich  he,  as  it  is  alleged,  has 
committed  against  us,  and  farther  to  perform  and  abide  such  order 
as  the  said  G.  H.  shall  make  in  this  behalf,   (a). 

Given  under  my  hand  and  seal,  this day  of A.  D.  — . 

G.  H.  [seal.] 

The  witness  must  be  sworn  or  affirmed,  by  the  Judge  or  other 
officer,  *'lo  testify  the  truth,  the  ichole  truth,  and  nothing  but  the 
truth,"  and  after  he  has  been  thus  sworn  or  affirmed,  his  testimony 
must  be  reduced  to  writing,  by  the  officer  taking  the  deposition 
or  by  the  witness,  or  some  other  disinterested  person  in  his  pre- 
sence, and  subscribed  by  the  witness.    Stat.  vol.  29,  p.  124,^  3. 

WOKDS  or  COURSE  PRECEDING  DEPOSITIONS    TAKEN  UPOJt  NoTICE. 


Depositions  of  witnesses  taken  in  a  cause  pending  in  the  Court 
of wherein  A.  B.  is  plaintiff,  and  C.  D.  defendant,  in  pursu- 
ance of  the  notice  hereto  attached. 

(a)  It  is  customary  to  endorse  upon  the  writ,  the  substance  of  the  com* 
plaint  thus  :  "For  not  appearing;  u  a  witccss  iu  behalf  of  A.  B.  haviog 
been  duly  summoned." 


DEPOSITIONS.  847 

G.  H.  of,  &c.  of  lawful  age,  being  first  duly  sworn,  or,  affirmsdf 
deposes  and  says,  That,  &c. 

Also,  T.  S.  of,  &c.  of  lawful  age,  being  first  duly  sworn,  or, 
a^rmcd,  deposes  and  says,  That,  die. 

The  depositions  having  been  respectively  subscribed  by  the 
witnesses,  the  officer  annexes  the  following  certificate.  Stat,  vol 
29,  p.  126,  §  15. 


Form  of  Certificate. 

I,  S.  S.  Judge,  or,  Justice  of  the  Peace,  or,  other  officer,  {^stating 
the  official  clf.iracter^  do  hereby  certify,  that  the  above  named  G. 
H.  and  T.  S.  were  by  me  sworn,  or,  afinned  to  testily  the  truth, 
the  whole  truth,  and  nothing  but  the  truth,  an.i  that  t!ic  foregoing 
depositions  by  tlicm  respectively  subscribed,  wen^  reduced  to  wri- 
ting by  [jiainiiig  the  person']  and  were  taken  at  the  time  and  place 
specified  in  the  enclosed  notice. 

S.  S.  (a). 

Dated,  &c. 

If  the  depositions  are  to  be  used,  within  the  limits  of  the  Judi- 
cial Circuit  of  t!ie  Court  of  Coni:non  Pleas,  wherein  they  are  taken, 
no  further  act  of  authentic  ition  is  necjssary;  but  the  officer  taking 
the  same  will  deHvcr  them  into  t!ie  office  of  the  proper  Clerk,  or 
other  proper  officer;  or  will  ssal  tlum  up  witli  a  copy  of  the  notice, 
direct  and  transinit  ihcm  to  sucli  Clcrlv  or  other  i)roper  officer, 
there  to  rimain  under  seal  until  opened  according  to  t!ie  rules  of 
Court.  Slut,  vol  29, /J.  125,  §  4,  t),  11.  {\\  however,  the  deposi- 
tions arc  not  taken  within  the  Judi^'ial  C'irciiitin  which  they  arc 
to  be  used,  wlieiher  taken  in  this  State  or  cIseA'lvjre,  they  must  be 
further  aiillienticated,  either  liy  parol  i)roof,  adduced  in  open  Court, 
or  by  the  annexation  of  tlic  olhcial  certificate  and  seal  of  some 
Secretary  or  other  officer  of  State,  keeping  the  great  seal  of  the 


{«)  If  tlie  ofliccr,  before  whom  llie  dcpositiona  arc  taken,  have  a  ssil  of 
•ffice,  icmufit  be  annexed  to  iiis  name.     Stat.  vol.  29,  p.  llJU,  J  11. 


248  DEPOSITIONS. 

State,  or  the  Cleric,  or  Frothonotary  of  the  Court  of  seme  City, 
County,  Circuit,  District,  Plate,  Territory,  Frovinco,  or  other  di- 
vision, that  the  officer  by  whom  the  depcsitionr:  were  taken,  was 
at  the  time  of  taking  the  same,  an  ofiiccr  within  the  meaning  of 
the  Statute.    Ibid,  §11. 


Cehtificatf.  or  County  Clerk, 

[Seal.]  State  of  Ohio, County,  ss. 

I.  A.  B.  Clerk  of  the  Court  of  Common 

Pleas  within  and  for  said  County  of do  hereby  certify  that 

on  the day  of A.  D. S.  S.  was  a  Justice  of  the 

Fence  within  and  for  the  said  County  of duly  elected  and 

qualified. 

Given  under  my  hand  and  seal  of  ofEce,  this  — -. —  day  of ■ 

A.  D. . 

A.  B. 


Dedi^izts  Potestati::^!, 

The  Statute  makes  no  provision  for  taking  depositions  in  foreign 
countries  ;  in  such  cases,  recourse  is  had  to  :\.  deilijn^!:^  poieslatcrn. 
A  dedimus  potestaicTn  may  also  be  granted  in  other  case?,  a<^- 
cording  to  the  common  usages  of  Courts,  where  it  may  be  neces- 
sary to  prevent  the  delay  or  failure  of  justice.  Siat.  vol.  29,  p. 
72,  §  75.  It  ma^y"  be  granted  by  the  Supreme  Court,  or  Court  of 
Common  Pleas,  in  term  time,  or  by  any  President  Judge  in  vaca^ 
tion.     Ibid. 


Cruer  for  a  Dedimus  Potestatem. 

On  motion  of  the  Court,  hy  Mr.  O.  counsel  for  the  plaintiff,  it 
is  ordered,  thai  a  dedimus  pctestaicni  issue  in  this  cause,  to  take 
the  deposilions  of  sundry  persons  in  the  city  of  New  Orleans,  to  be 
directed  to  S.  T.  and  W.  any  two  of  whom  may  execute  the  same: 


DEPOSITIONS.  349 

and  it  is  further  ordered  that  the  defendant  within  ten  days  file 
with  tjic  Clerk  of  this  Court  the  name  of  an  ai^cnt  resident  in  the 
said  Citv  of  Neto  Orleans,  to  whom  notice  of  the  time  and  place 
of  eACcntinf:^  said  dedimus  pot^statcm  may  be  given;  and  it  is  fur- 
ther ordered  that  the  service  of  sucli  notice  upon  such  agent,  tcr^ 
days  previous  to  the  execution  of  said  dc.diwus  pntesta'em  cliall 
be  deemed  good  service  upon  the  dcfendcmi:  and  it  is  further  or- 
dered that  if  the  defendant  fail  to  file  with  the  Cleric,  the  name  of 
such  agent,  hy  the  time  aforesaid,  then  said  dedimus  pctestafem 
may  issue  ex  parte,     (a) 


FOUM  OP  DEDIMUS  POTEST ATEM  TO   TAKE   DEPOSITIONS  GENERALLY, 

[Seal.]  The  State  of  Ohio Count}-,  ss. 

To  S.  T.  and  Yi.  of,  &:c.  Greeting  : 

Know  ye,  that  wo  in  confidence  of  your  prudence  and  fidelity, 
have  appointed  you,  and  by  these  presents  do  give  to  you  or  any 
two  of  you,  full  power  and  aalhoritj',  to  examine  and  take  the  de- 
positions of  witnesses  in  a  certain  cause  depending  in  our  Cowt 

of  Common  Fleas,  within  and  for  the  said  County  of and 

wherein  A.  B.  is  plaintiff  and  C.  D.  defendant;  •■  and  therefore 
WC  command  you  or  any  two  of  you  that  at  certain  days  and 


{(i)  Tlio  Commii-sionors  arc  appointed  Vy  the  Ccmit  or  agreed  on  by  the 
parlicf.-.  In  Knyl^ni!!,  llio  order  ot"  tlin  Cuiiia  ciirccis  the  Ul-rk  cf  ilie  aJ- 
vorsp  parly,  to  name  to  IIr-  Clerk  ol'  llie  parly  applying  lur  ilio  coniniisijion, 
nn  agi.nt  rci-iclont  m  tlio  place  wliore  the  c<:minission  is  to  be  exetutod,  to 
whom  nolii  0  nf  tlie  execution  of  the  co!iiini<'9ion  is  to  bo  "-iven,  nnd  that 
service  of  euoh  notice  en  tiic  iigcnt  be  good  notice,  or  in  dclyiiltof  naniing 
an  owont.  llie  conunission  to  is&n.-  arc  purlc.  JWw.  Ck.  Pr.  ]'20.  J)eposi- 
tions  lakon  npoii  conimiesiyn  are  not  giiverncd  by  llio  .Statute  proviJnur'for 
the  takinrr  of  <iepos;tionc  (f>»/.  LH).  p.l'^,  {  7").)  but  by  the  '-Cimmon  uZirca 
of  Couns."  Slat.  vol.  ij!),  p.  72,  ^  75.  in  some  cJisci--,  it  would  \.d  wliully 
impracticable  to  .f^ivc  the  noiico  rtquircd  by  llio  generui  law;  us  if  deposi- 
tions w:;io  to  bo  lakiMi  in  (.!uh;u!.ta,  or  in  many  |)aris  of  ICitropc.  Indeed 
inconvciiienco  and  delay  ot\on  arise  from  this  cuw^'j,  in  tukir!;  dcposifiona 
in  tiie  Atlanuc  ciiics.  (Jur  Courts  are  au:horii-.ed  lo  i.-eue  a  (!id:mu3 
"wlicnevcr  it  may  be  nr^cessiry  to  prevent  the  delay  or  failure  of  jug;ice." 
Stat.  vol.  2'.),  p.  72,  J  7.'>.  Tlvj  application  is  addressed  to  llic  scir.d  dis- 
cretion of  the  Court,  and  may  be  niado  at  law  as  well  as  in  Ckanccry.  Jbid. 


850  DEPOSITIONS. 

places  to  be  appointed  by  you,  the  said  parties  or  their  agents  hav- 
ing ten  days  notice  thcreot,  you  c:iusc  such  witnesses,  as  may  be 
required  by  either  of  s:yd  parties  or  their  agents,  to  be  brought 
before  \ou  or  any  two  of  you,  and  tlien  and  there  examine  each  of 
them  on  their  respective  corporal  oaths,  first  taken  before  you  or 
any  two  of  you,  and  that  you  reduce  such  examination  to  writing, 
and  return  the  same,  together  with  this  writ  closed  up  under  your 
seals,  or  the  seals  of  any  two  of  you,  into  our  said  Court  with 
all  convenient  speed. 

Witness  :  T.  T.  President  Judge  of  our  said  Court  of 
Common  Pleas  this day  of A.  D. . 

Attest. 

T.  C.  Clerk. 

Form  of  dedimus  potestatem  to  take  depositions  ;  ex  parte,  (a) 

[^Proceed  as  in  the  last  precedent  to  the  * on  the  part  of  the 

plaintiff,  and  therefore  v/e  command  you  or  any  two  of  you,  tliat 
at  certain  days  and  places  to  be  appointed  by  you,  you  cause  such 
witnesses,  as  may  be  required  by  the  said  plaintiff,  to  be  brought 
before  you  or  any  two  of  you,  &c.  [Conclude  as  in  the  last  prece- 
dent.^ 

As  mistal\es,  in  the  execution  of  this  commission,  are  easily 
made,  and  all  the  proceedings  thereby  rendered  invalid,  it  is  advi- 
sable for  the  parly,  or  his  attorney,  Lo  transmit  special  instructions, 
with  the  commission,   which  may  be  as  follows : 

To  e.    T.    AND     W. 

Enclosed  is  a  commission  issued 

by  the  Court  of authorizing  you  or  any  two  of  you  to  examine 

witnesses  in  a  certain  cause  pending  in  said  Court.  In  the  exe- 
cution of  this  commission  you  will  please  observe  the  following 
directions : 

(a)  See,  ante.  i349  nule  (a). 


DEPOSITIONS.  851 

You  "will  draw  up  on  paper,  preparatory  to  the  cxaminalion  of 
witnesses,  the  title  of  the  depositions,  thus:  "Depositions  of  wit- 
nesses, produced,  sworn  and  affirmed  on  the day A.  D. 

at by  virtue  ol'  u  CuJUini.ssion  issued  from  the   Court  of 

to  us  directed  for  the  examination  of  witnesses  in  a  certain 

cause  pending  in  said  Court,  wherein  A.  B.  is  plaintiff  and  C.  D. 
defendant." 

You  will  next  administer  to  the  witness  whom  you  are  about 
to  examine,  an  oath  or  alfirmalion,  that  with.out  favor  or  affection 
to  either  party,  he  will  speak  the  truth,  the  whole  truth,  and 
nothing  but  the  truth,  and  then  proceed  as  follows  : 

"G.  T.  of,  (fcc.  aged years  or  thereabouts 

being  produced,  sworn  or  a^Jiryned,  and  examined  on  behalf  of  the 
plaintijf  or  drfcndanf,  deposes  and  says,  that,  &c."  After  the  ex- 
amination in  chief  is  concluded,  if  there  be  a  cross  examination, 
say,  "Upon  cross  examination  by  the  defendant  or  plaintiff,  the 
said  G.  T.  furtiier  says,  that,  &:c."  If  the  witness  be  rc-cxamin- 
ed  by  the  party  calling  him,  say,  "Upon  re-exam. i nation  by  the 
plaintiff  or  defendant,  the  said  G.  T.  further  says,  that,  &.c." 

The  witness  will  then  subscribe  his  examination  with  his  name, 
and  the  acting  commissioners,  will  put  their  names  opposite  to  his 
signature  for  the  purpose  of  identifying  it,  and  if  in  the  courscof  the 
examination,  the  witness  refers  to  any  paper,  or  docurnent,it  must 
be  marked  by  some  letter  or  figure,  and  further  identified  by  the 

acting  commissioners,  tlius;  '-This  is  the  paper  referred  to  by 

in  his  examination,  as  the  paper  marked,  (A)"  to  which  they  will 
si^jn  their  names. 

The  examination  being  completed,  the  commissioners  who  con- 
ducted it.  will  attach  the  depositions  and  exhibits  to  th.c  commis- 
sion, and  endorse  the  same  as  follows:  "  The  execution  of  this 
commission  appears  in  a  certain  schedule  hereto  annexed,"  to  which 
the  names  of  the  commissioners  will  be  subscribed.  The  whole 
thus  prepared,  will  be  enclosed  in  an  envelope,  scaled  up,  and  ad« 


662  DEPOSITIONS. 

dressed  as  follows :  "To,  &c."  \_T/t,c  Court  from  lolnch  thn  com,' 
mission  issued.']  It  may  then  be  delivered  to  an  agent,  cr  for- 
•VvarJed  hy  the  most  expeditious  and  safe  conveyance.  («) 


(a)  111  England  and  in  some  of  the  United  States,  witnesses  arc  CAamin- 
ed  upon  written  interrogatories,  which  are  usiiaily  prepared  by  counsel,  and 
annexed  to  the  connnitsioii.  Tiiid  practice  does  not  prevail  to  any  con- 
Biderablo  extent,  in  our  Jr'tatc.  The  exaniiiiatinn  is  gtnicraily  viva  voce  and 
the  te.<tii!iony  reduced  to  writing  by  the  coniniisaii^ners  in  tlie  language  of 
the  witness. 

It  is  Jihvays  advisable  to  take  llie  depos'.tio;i  of  the  p'-^rson  serving  the  no- 
tice, ('if  notice  be  g^ivi'ii)  to  prove  the  service  ot"  such  notice,  especially  if 
the  person  serving  the  notice,  reside  abroad.     Sk::  ante  049.  tidlc.  (a) 

Exceptions  to  depositions  may  Le  heard  an.l  di&pused  of  belbre  the  cause 
is  called  for  trial.  This  is  i)roper  in  ordc;  tos.\ve  the  expense  and  delay  of 
a  jury,  and  to  obttiia  a  coiitiuLiuiice  if  acccssLiry. 


EXECUTIONS  353 


EXECUTIONS. 

No.  1.   Fi.  Fa.  el  Lev.   Fa.  on  JunoMENT,  on  Decree  for  mo- 
ney, IN  Common  Pleas. 

[seal]  The  State  of  Ohio County,  ss. 

To  the  Sheriff  of  said  County,  Greeting: 

We  command  you  *  that  you  cause  to  be  levied  of  the  goods 

and  chattels  in  your  bailiwick,  of  C.  D.  the  sum  of dollars,  (a) 

which  by  \\\c  judgment,  ov,chcree,  of  our  Court  of  Common  Pleas 

within  and  for  the  said  County  of at  the term  thereof 

A.  D. A.  B.  recovered  against  the  said  C.  D.  with  interest 

thereon  from,    &c.    [Dais  of  Judgment  or  Decree']   until  paid : 

and  also  the  further  sum  (f  dollars,  the  costs  of  increase  on 

said  judgment,  and  the  accruing  costs :  and  for  want  of  goods  and 
chattels,  that  you  cause  the  same  to  be  levied  of  the  lands  and  ten- 
ements, in  your  bailiwick,  of  the  said  C.  D.  (b)  and  have  that  mo- 
ney before  our  said  Court  of  Common  Pleas,  on  the  first  day  of 
their  next  term,  to  render  unto  the  said  A.  B.  and  have  you  then 
there  this  writ. 


(rt)  This  l)lank  is  to  be  filled  with  tli«  amount  of  Mio  jiulf^ment,  and  the 
costs  occasioned  by  tlie  party  in  whose  favor  the  jtidf^ment  is  rendered,  up  to 
the  time  of  tlio  rendition  of  the  jiulgmeiit.  If  the  jud>^ment  be  in  the  favor 
of  the  jdaintid",  no  |)urL  of  the  defuiuianl's  costs  can  be  embraced  in  the 
judgment  or  inserted  in  the  execution,  and  vice  cersa.  Each  parly  is  pre- 
sumed to  pay  his  own  costs,  from  time  to  time,  as  they  accrue,  and  the 
jiidgmnnt  fur  co^sls,  includes  only  the  costs  of  the  successt'ul  party.  5  Ohio 
Rep.  210,  TUetxacl  amount  of  tiie  debt,  damages  and  costs, /br  ichicli 
tliejnhj^nicul  in  iiilcreil,  uui.'-t  he  indorsed  on  tin;  execution.  Stat.  vol.  1*9, 
p.  ioi.  (i  CM.  All  costs  which  accrue  nflrr  judgment,  and  which  arc  called 
"  costs  of  increase  and  accruing  costs,"  are  incideulal  to  tiie  execution  and 
form  no  part  of  the  judgment;  and  they  should  always  be  inserted  in  a 
separate  clause,  as  in  the  above  precedent. 

{b)  When  the  judgment  is  joint  against  principal  and   bail  or  surety,  pro- 
ceed thus:  "and  in  default  of  goods  and  chattels,  landsand  tenements  of  the 
said  ('.  I),  that  you  cause  the  jfume  to  be  hn-ied  of  the  goods  and  chattels, 
and  for  the  want  thereof,  of  the  lands  and  tenements  within  your  bailiwick 
of  G.  n.  and  I',  v.  and  have  you,  iVc." 

V  V 


354  EXECUTIONS. 


WiTA^Ess:  T.  T.    President  Judge  of  our  said  Court  of 
Common  Pleas,  this day  ©f A.  D. . 


Attest. 


T.  E.   Clerk. 


No.    2.     The  like,  or^  Ma^jdate  from  the  Supreme  Court. 

[seal.]         The  State  of  Ohio, County,  ss. 

To  the  Sheriff  of  said  County,  Greeting: 

We  command  you,  that  you  cause  to  be  levied  of  the  goods 

and  chattels  in  your  bailiwick,  of  C  D.  the  sum  of dollars 

[Sbe,  No.  1.  note  (<',').]  which  by  the  judgment,  or,  decie3,of  oi\t 

Supreme  Court  within  and  for  the  said  County  of at  tlie 

term  thereof  A.  D. A.  B.  recovered  against  the    said 

C.  D.  wiih  interest  thereon  from,  &c.  [The  date  of  the  judgment 

or  dccresi  until  paid:  and  for  want  of  goods  and  chattels  that  you 

cause  the  same  to  be  levied  of  the  lands  and  tenements,  in  your 

,  bailivs'ick,  of  the  said  C.  D.  and  have  that  money  before  our  Court 

of  Common  Pleas  within  and  for  the  said  County  of on  the 

first  day  of  their  next  term  to  render  unto  the  said  A.  B.  and  have 
you  then  there  this  writ. 

Witness,  &c.  [Cojichide  as  in  No.  1.] 


No.  3.    Form  of  Ca.    Sa.  on  Juegment,  or  Decree  for  mo- 
ney, IN   Common  Pleas. 

\P7-oceed  as  in  No.  1.  to  the  * that  you  take  C.  D.  if  he 

shall  be  found  in  your  bailiwick,  and  him  safely  keep,  so  that  you 
have  liis  body  before  our  Court  of  Common  Pleas  v.ithin  and  for 
the   said  County   of on  the  first  day  of  their  next  term  to 


EXECUTIONS.  355 

satisfy  A.  B.  for  the  sum  of dollars  [See,  No.  1.  Note,  {a)  ] 

*  *  which  by  the  judgment,  or,   decree,  of  our  said  Court  at  the 

term  thereof  A.  D. A.  B.  recovered  against  the  said 

C.  D.  with  interest  thereon  from,   &c.  [T/ze  date  of  judgment  or 
decree']  until  paid,  and  have  you  then  there  this  writ,  {a) 


No.  4.    The  like,  on    Mandate  fsom   the    Supreme  Court. 


[Proceed  as  in.  the  last  precedent  to  the  *  *  which  by  the  judg- 
ment,  or,   decree,    of  cur    Supreme    Court    within  and  for  the 

said  County  of at  the term  thereof  A.  D. A-  B. 

recovered  against  the  said  C.  U.  with  interest  thereon  from,  &c. 
[The  date  of  the  judgment  or  decreel  unlil  paid,  and  have  you  then 
there  this  writ. 

Witness,  &c.  [Conclude  as  in  No.   1.] 


No.  5.     Form  of   Venditioni  exponas. 

[Proceed  as  in  No.   1.  to  the  * that,  those  goods  and  chat 

tch,  or  those  lands  and  tenements,  of  C.  D.  \\  hich  you  lately,  ac- 
cording to  our  command  took  into  your  hand  5,  and  which  remain 
unsold  ;  you  expose  to  sale,  to  satisfy  A.  B.  the  sum  of dol- 
lars [Sek,  No.  1.  note  («)  ]  wiiich  by  the  judgment,  or,  decree,  of 
our  Supreme  Court,  or,  Court  of  Common   Pleas,  within  and  for 

the  said  County  of  at  the trrni  thereof  A.  D. A. 

B.  recovered  against  the  said  C.  D.  with  interest  thereon  from,  'i'c. 
[The  date  of  the  judgment  or  decree]  unlil  paid:  and  have  the 
money  arising  from  such  sale  before  our  said  Supreme  Court,  or. 
Court  of  Common  Pleas,  on  the  first  day  of  their  next  term,  to  ren- 
der unto  the  said  A.  B.  and  have  you  then  ;herc  this  writ. 

Witness,  &.c.  [Conclude  as  in  No.  1.] 


(a)  Where  a  Cn.  Sa  is  tlircctcd  lo  tlio  iSlicrilT  of  another  County  than 
thntin  wliicli  tho  jinlfjment  ig  rendered,  tho  Ciirk  must  endorse  on  the  ca. 
sa.    "Funds  arj  depobitod  lo  pay  the  ShorilF  on  tliin  writ.     T.  C  Clerk." 


356  EXECUTIONS. 

Forms  of  Alias  and  Pluries  writs  or  Execution. 

[seal.]         The  State  of  Ohio  County,  ss. 

To  the  Sheriff  of  said  (Jounty,  Greeting: 

We  command  you,  as  before  we  have  commanded  yov,  if  an 
Alias ;  or,  as  oftevJimcs  before  ice  have  commanded  you,  if  a  Plu- 
ries; that  you,  &c.   [Conclude  as  in  the  original.'] 


No.  G.     Form  of     Habere   Facias   Possessionem,    with  Fi.  Fa. 
et  Lev.  Fa.  F(ik  damages  and  costs. 

[seal.]         The  State  of  Ohio County,  ss. 

To  the  Sherilf  of  said  County,  Ctreeting; 

Whereas  John  Doe  on  the day  of A.  D. in 

our  Court  of  Common  Pleas,  or,  Supreme  Court,  within  and  for 

the   said  County  of recovered  against   Joseph  Smith,   his 

term  yet  to  come  in  [two  messuages,  two  hundred  acres  of  arable 
land,  ^c.  as  in  the  Declaration']  situate  in  your  bailiwick,  which 
John  Rogers  had  demised  to  the  said  John  Doe  for  a  term  which 

is  not  yet  expired  ;  (.7)    and  also,  the  sum  of dollars  for  his 

damages,  and dollars  for  his  costs  in  that  behalf  expended: 

Therefore  we  command  you,  that  without  delay,  you  cause  the 
said  Johii  Doe  to  have  possession  of  his  said  term  yet  to  come  of 
and  in  the  tenements  aforesaid  with  the  appurtenances :  and  we 
also  command  vou  that  without  delav  you,  cause  to  be  levied  of 


[a)  ^Yhere  the  Doolaration  contains  a  double  di'mise,  and  a  recovery  has 
been  had  upon  hot!),  proceed  thus  frona  the  (a)  "And  whereas  also  the  said 
John  Due  at  the  eame  timo  and  in  llie  eame  Court  recovered  against  the 
Eaid  Joseph  Smith,  two  other  messuages,  &lc.  situate,  &lc.  and  also  the  sum 
of Dollars,  (f^cc." 


EXECUTIONS.  357 

the  goods  and  chattels,  in  your  bailiwick,  and  for  want  of  goods 
and  chattels,  of  the  lands  and  tenements,  in  your  bailiwick,  of  the 

said  C.  D.  the  sum  of dollars,  the  damags  and  costs  afore-  • 

said,  with  intere':t  thereon  from,  &c.  [The  date  of  the  judgmenf] 
and  in  what  manner  you  shall  have  executed  this  writ,  make  ap- 
pear to  our  said  Court  of  Common  Pleas  on  the  first  day  of  their 
next  term  :  and  have  you  then  there  the  damages  and  costs  afore- 
said together  with  this  writ,  (p) 

Witness,  &c.  [Conclude  as  in  No.   1,] 

Form  of  Execution  in  Detinue. 

No.  7.  [Proceed  as  in  No,  1.  to  the  *  —  that  you  cause  to  be 
levied  of  the  goods  and  chattels  in  your  bailiwick,  of  C  D.  the  sum 
of dollars  («),  which  by  the  judgment  of  our  Court  of  Com- 
mon Pleas,  within  and  for  the  said  County  of at  the term 

thereof,  A.  D. A.  B.  recovered  against  the  said  C.  D.  with  in- 
terest thereon  from,  &c.  [Date  of  judgment']  \xn\\\\iXvA'.  and  for 
want  of  goods  and  chattels,  that  you  cause  the  same  to  be  levied 
of  the  lands  and  tenememts,  in  your  bailiwick,  of  the  said  CD. 
and  have  that  money  before  our  said  Court  of  Common  Pleas,  on 
the  first  day  of  their  next  term,  to  render  unto  the  said  A.  B. 

We  also  command  you,  that  you  cause  to  be  levied  of  the  same 
goods  and  chattels,   lands    and  tenements,   of  the  said  C.  D.  the 

further  sum  of dollars  [The  value  of  the  goods  and  chattels  as 

assessed  by  the  jury']  with  interest  thereon  from,  &c.  [Date  of 
judgment']  until  j)aid;  unless  the  said  C,  D.  shall  render  to  the  said 
A.  B.  the  following  goods  and  chattels,  lately  in  our  said  Court  ad- 
judged to  him,  to  wit:  [here  enumerate  the  articles']  and  in  what 
manner  you  shall  have  executed  this  writ,  make  appear  to  our  said 
Court,  on  ihe  same  day  above  written. 

Witness,  &c   [Conclude  as  in  No.  1. 


[ii]  Whiin.' the  jiulgiiient.  is  t.y  dt^I'milr,  .•  jrainst  l!ie  riiPU.U  ejector,  siihsti- 
tute  tlic  name  of  tliu  cnsuul  ojrclor  for  .losopli  Smith,  and  omit  all  that 
part  of  llic  writ  which  ri'liites  to  coste.  If  a  moiety  or  any  other  portion, 
be  recovered,  the  nece?s:iry  alicrations  in  the  above  form  miiy  he  made  f.oni 
the  Judgment.  A  c«.  sa.  for  liie  costs  may  be  subslilutcd  in  the  pl;icc  of 
the  Fi.  Fti.  et  Lev.  Fa. 

[b).  This  blank  is  to  bo  filled  willi  the  ar-<rrccrate  amount  of  the  costs  of 
suit  until  after  final  judgment,  and  the  diima^res  assessed  by  the  jury  exdu- 
sivp  of  the  value  of  the  goods  and  chattels. 


358  ATTACHMENT. 


Attachment. 

Writs  of  attachment  can  be  prosecuted  only  for  causes  arising 
out  of,  founded  upon,  or  sounding  in  contract,  or  upon  the  judg- 
ment or  decree  of  some  Court  of  Law  or  Chancery.  Stat.  vol.  20. 
p.  ]  33,  §  i).  Attachment  cannot  be  sustained  against  one  of  several 
joint  contractors.  4  0/iio  Rep.  132.  Ohio  Conds.  7.52:  nor  where 
one  of  several  contractors  is  a  resident  and  the  others  non-residents. 
4  Ohio  Rep.  149.    Ohio  Conds.  758. 


Form  of  Precipe  and  Affidavit  for  writ  of  Attachjient. 


A.  B.  ) 

vs.     >    In  case,  &c.     Damages Dollars. 

C.  D.  ) 


Issue  a  writ  of  attachment  returnable  at  next  Term. 
Endorse    "Suit  brot  for,  &c.''      [State  the  cause  of  action  in  hrief.'\ 

S.  T.attij.for  Pltff. 

To  the  Clerk  of Com.  Pleas. 

Dated,  &c. 

The  above  named  A.  B.  {a),  makes  oath  and  says,  that  the  above 
named  C.  D.  is  his  debtor  and  hath  absconded  to  the  injunj  of  his 


(a)  It  the  affidavit  be  made  by  an  ngeiit  or  attorney,  say,  ''T.  S.  a^e'it.  or, 
a/Zo/'HCT/,  of  the  above  iiaiiicd  A.  B.  makes  oath  and  says,  that,  the  above 
named  C.  D.  is  the  debtor  of  the  above  named  A.  B.  and  hath  absconded  to 
to  tlie  injury  of  his  creditors,  or,  &c"  -If  the  writ  issues  without  the  proper 
oath  or  affirmation,  it  may  bo  quashed  at  the  costs  of  the  Clerk.  Slal.  vol. 
29.  p.  130.  5  1. 


ATTACHMENT.  359 

creditors,  or,  that  the  above  named  C.  D.  is  his  debtor,  and  is  not  a 
resident  of  the  Slate  of  Ohio,  as  he  verily  believes. 

A.  B. 

Sworn  to  and  subscribed  before  me 
this  day  of A.  D. 

T.  X.  Jus,  Peace. 


Form  of  writ  of  Attachment. 

[Seal.]         The  State  of  Ohio, County,  ss. 

To  the  Sheriff  of  said  County,   Greeting: 

We  command  you  to  attach  the  lands,  tenements,  goods,  chat- 
tels, rights,  credits,  monies  and  effects,  of  C.  D.  wheresoever  they 
may  be  Ibund,  and  the  same  to  keep,  or  so  to  provide  that  the  same 
or  the  value  thereof,  may  be  forthcoming,  to  answer  the  judgment 
of  our  Court  of  Common  Pleas  within  and  for  the  said  County  of 

in  a  certain  action  on  the  case,  therein  prosecuted  by  A.  B. 

against  the   said  C.    D.   for dollars  damages;  and    in  what 

manner  you  shall  execute  this  writ,  make  appear  to  our  said  Court 
of  Common  Pleas  on  the  iirst  day  of  their  iicxt  term,  and  have  you 
then  there  this  writ. 

Witness,  T.  T.  President 

Judge  of  our  said  Court  of  Common  Fleas,  this day  of 

A.  D. 

Attest.  T.  C.  Clerk. 


The  ofliccr,  with  this  writ,  goes  to  the  place  where  the  property 
of  the  defendant  is  to  be  found,  and  in  the  presence  of  two  freehol- 
ders of  the  county  declares,  that  by  virtue  of  said  writ,  he  attaches 
the  property,  at  the  suit  of  the  Plaintiff';  and  thereupon  the  officer, 
with  the  freeholders,  who  arc   to  be  under  oath  or  affirmation,  to 


360  ATTACHMENT. 

to  be  administered  by  the  officer,  must  make  out  a  true  inventory 
and  appraisement,  of" all  the  property  attached,  which  must  be  sign- 
ed by  the  officer  and  freeholders,  and  returned  with  the  the  writ. 
Stat.  vol.  29.  Tp.  130.  §2. 

Form  of  Inventory  ai^d  Appraisement. 

An  inventory  and  appraisement  of  property  attached  by  T.  S. 

Sheriff  of County  at  the  suit  of  A.  B.  against  C.  D.  made  this 

day  of A.  D. by  the  said  Sheriff  and  E.  F.   and 

G.  H.  two  freeholders  of  said  county,  the  said  E.  F.  and  G.  H. 
having  been  first  duly  sworn,  or,  affirmed,  by  said  Sheriff;  To  wit : 

One  sorrel  horse  appraised  at Dollars. 

One  road  wagon         "  "  " 

One  hundred  acres  of  land,  bounded  and  described  as  follows,  to 
wit:  \_Here  insert  the  metes  and  bounds  with  as  much  particularity , 
as  in  deeds  of  conveyance.']  and  appraised  al Dollars. 

T.  S.  &c. 


This  inventory    and  appraisement  is  attached  to  the  writ,  upon 
which  the  Sheriff  endorses  his  return  thus : 


Sheriff's  Return. 

I  executed  this  writ  on  the day  of ■  A.  D. by  at- 
taching certain  property  in  the  possession  of  T.  X.  described  in  the 
inventory  and  appraisement  herewith  returned,  and  which  pro- 
perty now  remains  in  my  hands,  or,  icas  delivered  to  the  said  T.  X. 
upon  bond  and  security  being  given. 

T.  S.  Sheriff  of County. 

Dated,  &c. 


ATTACHMENT.  §^1 


Form  of  Bond  to  the  Sheriff  upon  redelivery  of  Property. 

Know  all  men  by  these  presents,  that  we  T.  F.  E.  F.  and  G.  F. 
[Two  freeholders  of  the  County']  arc   held  and  firmly  bound  unto 

T.  S"  Sheriff  of  the  County  of in  the  State  of  Ohio,  in  the 

penal  sum  of dollars  [Do?ibIe  the  appraised  value  of  the  prop- 

ertij']  to  the  payment  of  which  well  and  truly  to  be  made  we  do 
b}^  these  prcfcnts  jointly  and  severally  bind  ourselves,  our  heirs,  ex- 
ecutors and  administrators,  sealed  with  our  seals,  and  dated  tills 
day  of A.  D. 

The  condition  of  the  above  obligation  is  such,  that,  whereas,  by 
virtue  of  a  writ  of  attachment  issued  out  of  the  Court  of  Common 

Pleas  of  the  said  county  of against  C.  D.  at  the  suit  of  A.  B. 

bearing  date  the day  of A.  P. the  said  Sheriff  hath 

seized  upon  and  taken  the  following  property,  in  the  possession 
of  the  said  T.  F.  to  wit,  [description']  and  which  has  been  apprais- 
ed according  to  law  to I 'ollars,  and  upon  the  ensealing  of  these 

presents  is  redelivered  to  the  said  T,  F.  Now,  if  the  said  prop- 
erty above  described,  or  its  appraised  value  in  money,  shall  be 
forth-coming  to  answer  the  judgment  of  said  Court,  then  this  ob- 
ligation shall  be  void;  otherwise  in  full  force  and  virtue  in  Law. 

T.  F.  Seal. 
E.  F.  Seal. 
G.  F.   Seal. 

Upon  the  return  of  the  writ  it  is  the  duty  of  the  Clerk,  to  make 
out  an  advertisement,  and  deliver  the  same  to  the  Plaintiff,  or  his 
attorney  on  demand,  who  must  cause  the  same  within  tiiirty  days, 
to  be  inserted  in  one  of  the  newspapers  printed  in  the  State,  and 
nearest  the  place  where  the  attachment  issued,  for  six  weeks  suc- 
cessively; and  if  the  plainlill"  neglects  to  iiave  such  notice  published, 
the  attachment  will  be  dismissed  with  costs.  Slat.  vol.  2i),  p.  131. 
§3. 


Ww 


863  ATTACHMENT. 


Form  of  Advertisement. 


All  persons  interested  will   take  notice  that  A.  B.  on  the 

day  of A.  D. sued  out  a  writ  of  attachment  from  the 

Court  of  Common  Picas    of County    in  the  State  of  Ohio, 

against  C.  D.   for  the  sum  of Dollars,  which  writ  has  been 

served  and  returned. 


Attest. 

T.  C.  Clerk. 

Dated,  &c 

A.  T.  atty.  forPIff. 

Form  of  Affidavit  to  make  Garnishee  partv. 


A.  B.  J 

vs      >    In  Case,  &c. 
C.  D  ) 


The  above  named  A.  B.  [^Or  other  credible 
person.  Stat.  vol.  29.  p.  131.  §  5.]  makes  oath  and  says  that  he 
has  good  reason  to,  and  does  verily  believe,  that  T.  W.  has  in  his 
possession  the  following  property,  \_descriptLon'\  belonging  to  the 
above  named  defendant. 

Signed,  A.  B. 

Sworn  to,  &c. 

If  the  Sheriff  cannot  come  at  such  property,  he  is  to  leave  with 
the  garnishee,  or  at  his  usual  place  of  residence,  a  copy  of  the  writ 
of  attachment,  and  of  the  above  affidavit,  with  the  following 
notice. 


ATTACHMENT.  3M 


Form  of  Notice  to  Garnisheb. 


Common  Pleas  —  Attachment. 


To  T.  W.  of,  ^c. 

You  are  hereby  notified 
to  appear  on  the  first  day  of  the  next  Term  of  said  Court,  and  an- 
swer such  questions  as  may  be  put  to  you  touching  the  property 
and  credits  of  the  above  named  defendant,  in  your  possession,  or 
within  your  knowledge,  and  abide  the  order  of  the  Court  in  the 
premises. 

A.  B. 
Dated,  <fec. 

Sheriff's  Return. 

I   executed   this  writ  on  ihe day  of A.  D. by 

leaving  with  T.  W.  or,  at  the  usual  place  of  residence  of  the  said 
T.  W.  a  Copy  of  this  writ  and  of  the  alHdavit  and  notice  hereto 
attached. 

T.  S.  Sheriff  of County. 

Dated,  &;c. 

The  Declaration  is  to  bo  filed  at  or  before  the  third  term  after 
the  issuing  of  the  writ.  Slat.  \'o/.  29.  p.  IXl.  §  9.  Ft.rnis  of  Dec- 
larations in  attachment  arc  the  same  as  when  personal  service  is 
made  upon  the  defendant.  See,  Z>cc/a7-a/io«5  i?i  Assumpsit,   Case, 


364  BILLS  OF  EXCEPTION. 


Bills  of  Exception. 


Forms  of  Bills  of  Exception. 


In  case,  &c. 


Be  it  remembered,  that  on  the  trial  of  this  cause 

in  the  Court  of  Common  IMeas  of County  at  the Term 

thereof,  A.  D. the  said  A.  B.   to  maintain    the  issue  on  his 

part,  offered  to  prove  to  the  Jury,  that,  ^c.  [Sta'e  the  evidznce  ob- 
jected to  and ove?'fuJed,  (t/id  such  other  nu.tter  as  will  show  the  j) ar- 
ticular point  wherein  thepartij  excepting m  :y  have  been  injuredhy 
the  opinion  excepted  to.  4  Ohio  Rep.  888.  OJiio  Conds.  838] 
Wliereupon  the  said  C  D.  objected  to  the  admission  of  said  testi- 
mony, which  objection  was  overruled  by  the  Court,  and  said  tes- 
timony admitted,  to  which  opinion  of  the  Court,  the  said  < ".  I),  ex- 
cepted and  prayed  that  his  Bill  of  exceptions  in  that  behalf  might 
be  allowed,  which  is  accordingly  done;  and  upon  his  motion, 
the  same  is  ordered  to  be  made  a  part  of  the  record  in  this  case,  (n) 

E.  F.  Seal. 

Term,  A.  D. G.  H.  Seal. 

T.  S.  Seal. 
T.  T.  Seal. 


{a)  Bills  of  Exceptions  may  be  taken  to  the  opinion  of  the  Court,  on  a 
motion  to  direct  a  nonsuit,  to  arrest  the  testimony  trom  the  Jury,  and  in 
all  cases  (if motions  fur  a  new  tria',  by  reason  ofany  supi)osed  misdirection 
of  the  Court  to  the  Jury,  orliy  reason  that  a  verdict  is  supposed  to  bo  against 
law.  Stdt.  vnl.'Z'^.  ^^  75  ^  ^G.  The  bill  must  he;  si<Tiie.1  and  sen  Id,  du- 
ring the  Term,  by  such  of  the  Judges  as  concur  in  tiie  onier  or  judgment 
excepted  to.  Ibid.  A  maiidumus  may  issue  to  the  Court  of  Common  Pleas 
to  sign  a  true  bill  of  exceptions,  but  not  to  sign  a  particular  bill  of  excep- 


.   BILLS  OF  EXCEPTION.  3C6 

The  likk  upon  a    supposed    misdirection  of  the    Court    to 

THE  Jury. 

A.  B.  ^ 

vs      >    In  Case. 
C.  D.  ) 

Be  it  remembered  that  on  the  trial  of  this 

cause  in  the  court  of  Common  Pleas  of County,  at  the 

Term  thereof  A.  D. the  evidence  on  both  sides  being  closed, 

the  defendant  moved  the  Court  to  instruct  the  Jury,  that,  &c. 
which  instructions  the  Court  refused  to  give  to  the  Jury,  and 
thereupon  the  said  defendant  excepted  to  such  refusal,  and  prayed 
tiial  his  Bill  of  Exception  in  that  behalf  might  be  allowed,  which  is 
accordingly  done;  and  upon  his  motion  the  same  is  ordered  to  be 
made  a  part  of  the  record  in  this  cause.  [See,  last  precedent. 
Note  (ci)  J 


ticns  whether  true  or  not.  Thn  power  of  detprminincr  whether  a  T3il]  of 
GXCPi)tions  is  true  or  not.  is  vested  in  the  .Tiultrcs,  to  whom  it  is  prrsonted 
for  signature.  4  Ohio  Rpp.'^'yi.  Ohio  Cond^  8  .'().  There  is  no  law  in 
tlii8  stit.e,  an'lioriainir  hyt^land,  rs  to  allow  or  certify  hills  of  Exceptions. 
2  O.'do  Rep.  355.  Ohio  Coiids.  350. 


366  APPEAL. 


Appeal. 


In  all  civil  cases,  an  appeal,  lies,  of  course,  to  the  Supreme 
Court  from  any  judgment  or  decree  rendered  in  the  Court  of  Com- 
mon Pleas,  in  which  the  latter  Court  has  original  jurisdiction,  {a) 
The  party  wishing  to  appeal  his  cause  must  enter  upon  the  record 
his  intention  so  to  do,  during  the  term  in  which  the  judgment  or 
decree  is  rendered  ;  and  within  thirty  days  after  the  close  of  such 
term  must  execute  a  bond  to  the  adverse  party  conditioned  as  the 
law  directs.  Stat.  vol.  29,  p.  78.  §  1G8.  109.  Administrators  and 
executors  may  appeal  without  bond.  Ihid  1  Ohio  Rep.  518. 
Ohio  Conds.  218.  An  appeal  does  not  vacate  a  submission  to  ar- 
bitration nor  the  award.  1  Ohio  Rep.  271.  Ohio  Conds.  130.  In 
a  joint  action  against  several  defendants,  one  may  appeal  the 
whole  cause,  by  giving  the  bond  required  by  law,  but  such  appeal 
cannot  affect  his  co-defendant.  1  Ohio  Rtp.  518.  Ohio  Conds.  217. 
An  appeal  lies  to  the  Supreme  (]^ourt  though  the  trial  in  the 
Common  Pleas  was  irregular.  1  Ohio  Rep.  534.  Ohio  Conds.  226. 
In  Replevin  the  plaintiff  may  appeal  from  a  voluntary  judgment  of 
non-suit.  2  Ohio  Rep.  79.  Ohio  Conds.  2G1.  So,  in  all  cases  when 
a  non-suit  is  directed  in  the  Court  of  Common  Pleas,  by  reason  of 
irrelevancy  of  testimony,  or  by  reason  that  the  testimony  addu- 
ced, does  not  support  the  case,  set  forth  in  the  declaration,  and 
also  whenever  the  testimony  is  arrested  from  the  jury,  by  reason, 
of  which  the  plaintiff  becomes  non-suit.  Slat,  vol  29.  p.  75.  §96. 
If  the  appeal  bond  be  executed  after  verdict,  but  before  judgment 
the  appeal  will  be  quashed.  2  Ohio  Rep.  253.  Ohio  Conds.  349. 
So,  if  the  bond  be  not  double  the  amount  of  the  judgment  and  costs. 


(a)  In  what  cases  appeals  ma}'  be  taken  from  interlocutory  Decrees, 
seems  not  to  have  been  definitely  settled  by  our  Supreme  Court.  It  has 
been  held  on  the  Circuit,  that  an  appeal  will  lie  from  an  interlocutory  de- 
cree for  the  sale  of  mortgaged  premises,  or  a  bill  to  foreclose;  or  for  the 
sale  of  real  estate  geneially.  The  general  current  of  decisions  on  the 
Circuit  seems  to  be,  that  an  appeal  lies  from  any  interlocutory  Decree, 
which  is  in  its  nature  final  or  conclusive  of  the  subject  matter,  or  which  d«- 
termines  the  rights  of  the  parties,  in  the  matter  in  controversy. 


APPEAL.  3G7 

5  Ohio  Rep.  27G.  337.  4  Ohio  Rep.  175.  Ohio  Conds.  76G. 
Where  the  plaintiff  appeals,  and  recovers  no  more  in  the  Supreme 
Court  than  in  the  Court  of  Common  Pleas,  two  judgments  are 
entered,  one  for  the  plaintiff  for  the  amount  recovered,  and  the 
other  for  the  dc'bndant,  for  the  costs  on  the  appeal.  3  Ohio  Rep. 
72.  Ohio  Conds.  47G.  An  appeal  does  not  lie  on  an  application 
to  redeem  land  sold  for  taxes.  3  Ohio  Rep.  277.  Ohio  Conds. 
57Sr.  When  an  appeal  is  quashed  for  a  defect  in  the  appeal  bond, 
occasioned  by  the  mistake  or  oversight  of  the  Clerk,  a  Court  of 
equity  will  order  a  new  trial,  upon  a  proper  case  made.  4  Ohio 
Rep.  175.  Ohio  Conds.  7GG.  In  cases  certified  to  the  Common 
Pleas,  upon  attachment  from  Justices  of  the  Peace  the  Common 
Pleas  have  original  jurisdiction,  and  an  appeal  lies  to  the  Su- 
preme Court.  3  Oliio  Rep.    202.  Ohio   Conds.  323. 

Notice  of  appeal  is  generally  given  at  the  time  of  the  rendition 
of  the  judgment  or  decree,  and  it  is  entered  on  the  journal  imme- 
diately after  the  entry  of  the  judgment  or  decree,  thus  :  "Notice 
of  appeal  by  the  defendant,  or,  plaintiff,  or,  hj  both  parties.''^ 
When  an  appeal  is  taken,  and  bond  and  security  given,  the  judg- 
ment or  decree  of  the  0»\irt  of  Common  Pleas  is  suspended ;  the 
lien  however,  of  such  judgment  or  decree,  upon  the  real  estate  of 
the  appellant,  is  not  removed  or  vacated  by  the  appeal ;  but  such 
real  estate  remains  bound  in  the  same  manner  as  if  the  appeal  had 
not  been  taken.  Slat.  vol.  29.  p.  78.  79.  §  110.  112.  If  the  plain- 
tiff appeal,  and  do  not  recover  a  greater  sum  in  the  Supreme  Court, 
than  in  the  Court  of  Common  Pleas,  exclusive  of  costs  and  inter- 
est, which  have  accrued  after  the  rendition  of  the  judgment  in  the 
the  Court  of  Common  Pleas,  the  Supreme  Court  will  render  judg- 
ment against  him  for  the  costs  accruing  in  the  Supreme  Court :  and 
if  the  defendant  appeal,  in  any  personal  action,  and  the  plaintiff 
recovers  the  same,  or  a  larger  sum  than  was  recovered  in  the 
Court  of  Common  Pleas,  exclusive  of  costs,  the  Supreme  Court 
will  render  judgment  for  the  sum  so  recovered,  with  costs  of  suit. 
Stat.  vol.   29.  ;;.  79.  §  111. 


368  APPEAL. 


Form  of  Appeal  Bond. 

Know  all  men  by  these  presents  that  we  A.  B.  and  C.  (a)  are 

held  and  firmly  bound  unto  I.  S.  in  the  penal  sum  of dollars 

[^at  least  double  the  amount  of  the  judgment  or  decree,  including 
costs]  to  the  payment  of  which  well  and  truly  to  be  made,  we  do 
hereby  jointly  and  severally  bind  ourselves,  our  heirs,  executors 

and  administrators,  sealed  with  our  seals  and  dated  this day 

of A.  D. 

The  condition  of  the  above  obligation  is  such,  that  whereas  the 
said  A.  has  taken  an  appeal  from  a  certain  judgi7ient,  or,  decree, 
rendered   against  him    in  favor  of  the  said   I.  S.  in  the  Court  o^ 

Common  Pleas    within  and  for  the  County  of in  the  state  of 

Ohio,  at  the term  thereof  A.  D. for  the  sum  of dol- 
lars, debt,  or,  damages,  and dollars  costs,  (6)  to  the  Supreme 

Court  within  and  for  the  County  aforesaid  ;  Now,  if  the  said  A. 
shall  pay  the  full  amount  of  the  condemnation  in  said  Supreme 
Court,  and  costs,  in  case  a  judgment,    or  decree,  shall  be  entered 
therein  in  favor  of  the  appellee,  then  this  obligation  shall  be  void: ' 
otherwise  in  full  force  and  virtue  in  law. 

Approved  by  me,  T.   C.     Clerh. 

A.  [seal.] 

B.  [seal.] 

C.  [seal.] 

After  the  bond  is  execuied  and  approved,  the  Clerk  of  the  Com- 
mon Pleas  will  make  out  an  authenticated  transcript  of  the  jour- 


(<t)  It  is  not  necessary  that  the  nppp]]ant  should  liimself  execute  the 
bonH;  it  is  sutncient  if  it  be  executed  by  sureties  to  the  acceptance  of  the 
Clerk. 

(b)  Great  care  should  be  taken  in  describing  the  Judgment,  otherwise  the 
appeal  may  be  quashed  on  the  ground  of  variance. 


APPEAL.  339 

nal  entries,  and  of  the  final  judgment  or  decree,  which  transcript 
with  the  original  papers  in  the  cause  he  will  deliver  to  the  Clerk 
of  the  Supreme  Court  on  or  before  the  first  day  of  the  next  term 
of  the  Supreme  Court.  Stat.  vol.  29,  p.  79,  §  112.  The  certi- 
ficate of  the  journal  entries  may  be  as  follows : 


Certificate  op  journal  entries   and  Judgment  or  Decree. 
[seal.]         The  State  of  Ohio, County,  ss. 

I,  T.  C.  Clerk  of  the  Court  of  Common  Pleas  within  and  for 
the  said  County  of do  hereby  certify  that  the  following  en- 
tries and  judgment,  or,  decree,  are  truly  copied  from  the  journals 
of  said  Court  —  to  wit,  \_Here  insert,  verbatim,  each  order  from 
the  commencement  of  the  suit,  together  with  the  final  judgment,  or, 
decree,  noting  the  time  at  which  each  is  entered.'] 

In  testimony  whereof  I  have  hereto  set  my  hand  and  seal  of 
office,   this day  of A.  D. 

T.  C.  Chrk. 


The  Clerk  of  the  Supreme  Court,  upon  receiving  the  trans- 
scrij)t  and  original  papers  from  the  Clerk  of  the  Court  of  Com- 
mon Pleas,  enters  the  cause,  upon  his  issue  docket,  and  tlie  par- 
ties i)rococd  on  to  trial,  in  tin;  same  manner  as  if  the  issue  had 
originally  been  inadi;  up  in  the  Supreme  Court.  The  pleadings 
however,  may  be  altered  or  amended  in  the  Supreme  Court,  upon 
good  cause  shown,  and  on  payment  of  costs ;  and  in  such  case, 
the  Court  will  lay  the  jiarties  under  such  equitable  rules  and 
restrictions,  as  tiicy  may  conceive  necessary  to  prevent  delay. 
Stat.  vol.  2i).p.  79.  §  11-1. 

If  the  ajjpeal  bond  be  deficient,  or  the  apjjcal  be  otherwise  im- 
properly taken,  the  Court  on  motion,  will  dismiss  the  appeal.  2 
Ohin  Rrp.  253.  Ohio  Conds.  319.  3  Ohio  Rep.  277.  Ohio 
Cnnds.  573.  1  Ohio  Rrp.  175.  Ohio  Conds.  im.  5  Ohio  Rrp. 
27(5.  For  the  form  of  an  (."rdor  1o  dismiss  an  a|)pcal,  See,  Special 
Entries. 

Xx 


370  APPEAL. 


Appeals  prom  Justices  of  the  Peace. 


Appeals  are  allowed  from  jadgmcnts  of  Justices  of  the  Peace 
to  the  Court  of  Common  Pleas,  in  all  cases,  except  from  judg- 
ments rendered  on  confession.  Stat.  vol.  29.  p.  111.  §  40.  The 
appellant,  in  order  to  perfect  his  appeal,  must  enter  into  a  recog- 
nizance with  security  to  the  adverse  party  conditioned  according 
to  law,  and  on  or  before  the  second  day  of  the  term  next  after 
the  rendition  of  the  judgment  appealed  from,  must  file  with  the 
Clerk  of  the  Court  of  Common  Pleas,  to  which  the  appeal  has 
been  taken,  a  certified  transcript  of  the  proceedings  before  the 
Justice  of  the  Peace.  The  Clerk  on  receiving  such  transcript, 
enters  the  cause  upon  the  appearance  docket.  The  plaintiff  in 
the  Court  below  is  plaintiff  in  the  Court  of  Common  Pleas,  and 
the  parties  proceed  on  to  trial,  in  all  respects,  in  the -same  man- 
ner, as  if  the  action  had  been  originally  instituted  in  the  Court  of 
Common  Pleas.  Stat.  vol.  29.  p.  111.  178.  §  41.  43.  44.  The 
transcript  supplies  the  place  of  an  original  v/rit  and  forms  a  part 
of  the  final  record.  There  are  no  pleadings  before  Justices  of 
the  Peace ;  but  upon  an  appeal,  the  declaration  and  other  plead- 
ings are  to  be  filed,  and  a  regular  issue  is  to  be  made  up,  in  the 
same  manner,  as  if  the  defendant  had  been  brought  into  the  Court 
of  Common  Pleas,  in  the  first  instance,  by  a  summons  or  capias. 
See,  Declarations  in  Assumsit,  Case,  ^c.  The  plaintiff'  how- 
ever must  declare  in  the  same  form  of  action  as  that  before  the 
Justice  of  the  Peace,  or  at  least  one  of  the  same  nature.  He  can- 
not sue  before  a  Justice  of  the  Peace  in  debt  and  on  appeal,  de- 
clare in  slander. 

If  the  recognizance  be  deficient,  or  the  appeal  be  otherwise  im- 
properly taken,  the  Court,  on  motion  will  dismiss  the  appeal ;  but 
if  the  surety  in  the  recognizance  be  insufficient,  or  his  testimony  be 
required  by  the  appellant,  or  the  recognizance  be  insufficient,  in 
form  or  ainount,  the  Court  on  motion,  will  in  their  discretion  order 
a  change  or  renewal  of  such  recognizance.  Stat.  vol.  29.  p.  179. 
§  52.  and  thus  save  the  appeal.  For  the  forms  of  orders  in  such 
cases,  See,  Special  Entries. 


PARTITION.  371 


Partition. 


Partition,  and  the  pleadings  therein,  are  in  sonrie  cases  founded 
on  the  principles  of  the  Common  Law,  and  sometimes  on  Statutes; 
sometimes  on  the  deeds  of  the  parties  concerned,  sometimes  by 
writ  of  Partition,  and  sometimes  by  Petition.  G  Danes.  Abg.  477. 

The  jurisdiction  of  Chancery  in  awarding  partition,  is  well  es- 
tablished in  England  by  a  long  series  of  d  ;cisions,  and  it  has  been 
found  by  experience,  to  be  a  jurisdiction  of  great  public  conve- 
nience. 3  Co.  Liu.  Harg.  note  23.  2  Ves.  Jitn,  570.  17  Ves. 
533.  1  Ves.  c^  B.  551.  The  same  principle  has  been  acted  upon 
in  the  Courts  of  equity  in  this  Country.  \  J.  C.  R.  111.  3  /.  C 
R.  302.  4  Randolph  493.  Eq.  Rep.  S.  C.  lOG.  4  Kent.  Com. 
3G0.  3G1.  Courts  of  Chancery,  in  this  vState,  entertain  a  like  ju- 
risdiction, but  the  Statute  for  the  partition  of  real  estate,  has  in 
practice,  almost  entirely  superceded  all  other  modes  of  partition. 
By  the  provisions  of  this  Statute,  all  joint-tenants,  tenants  in  com- 
mon, and  co-partners,  may  be  compelled  to  make  or  suffer  parti- 
tion, upon  application  by  petition,  to  the  proper  Court.  Stat.  vol. 
p.  254. 


Form  of  Petition  for  Partition. 

To  the  Court  of  Common  Picas,  (a)  within  and  for  the  County  of 
,  and  State  of  Ohio. 

Your  Petitioner,  A.  B.  of,  &,c.  represents,  that  he  has  a  legal 


(n)  Wliorc  tlio  lamls  all  lie  in  nnn  County,  tlio  application  nmst  bo 
made  to  till!  Court  of  Coiiiinon  Plo;is  of  such  County;  hut  wIumi  tlioy  lie 
in  two  or  nioro  Countiop,  applicntion  may  bo  madn  to  tho  Snprfmc  Court, 
when  that  (Joiirt  shall  be  in  s:ission,  in  any  one  of  the  Counuori  whore  a 
part  of  the  lands  lie  ;  or  to  the  Court  of  Common  Picas,  in  any  one  of  tho 
Counties  where  a  part  of  tlio  lands  lie,  at  tho  option  of  the  demandant. 
Stat.  vol.  2d.  J}.  2.")5.    }  T. 


372  PARTITION. 

right  to,  and  is  seised  in  fee-simple  of  (a)  one  undivided  fourth  part 
of  the  following  real  estate,  situate,  &c.  [Countj/']  described  as  fol- 
lows: [Desc7'iption'].  And  your  petitioner  further  represents,  that 
C.  D.  E.  F.  and  G.  H.  of,  &c.  are  joint  tenants,  or,  tenants  in 
common,  or,  coparceners,  (b)  with  your  petitioner  in  the  said  pre- 
mises, and  that  S.  T.  of,  &c.  as  widow  of  T.  T.  lately  deceased, 
is  entitled  to  dower  in  the  same  premises,  (c)  Your  petitioner, 
therefore  prays,  that  partition  of  said  lands  may  be  made,  and  the 
dower  of  the  said  S.  T.  assigned  therein,  or  if  the  same  cannot 
be  done  without  manifest  injury,  that  then  such  other  proceedings 
may  be  had  in  the  premises  as  are  authorized  by  law. 

By  C.  S.  his  My: 


The  petition  is  filed  with  the  Clerk  of  the  proper  Court,  and  no- 
tice of  the  pendency  and  demand  thereof  must  be  published  in  some 
newspaper  in  general  circulation,  in  each  County  where  the  lands 
lie,  or  personally  served  on  each  person  concerned,  his  agent  or  at- 
torney, at  least  forty  days  prior  to  the  term  at  which  the  applica- 
tion for  the  order  of  partition  is  to  be  made.  Stat.  vol.  29.  p.  255. 
§3. 


(a)  It  is  necessary  to  set  forth  in  the  petition  the  nature  of  the  title  of 
the  demandant,  g.ud  also  to  aver  that  the  demandant  has  a  Ze^-aZ  r/g-/i<  in 
the  land  sought  to  be  partitioned,  Slat.  vol.  29.  p.  255.  ^  2.  The  demand- 
ant on  the  hearing'  must  also  make  out  a.  legnl  title,  either  by  possession 
in  himself  or  those  under  whom  he  claims,  for  a  length  of  time  sufficient  to 
give  title  under  the  Statute  of  limitations,  or  in  some  other  manner.  If 
the  demandant  have  merely  an  equitable  title,  his  only  remedy  seems  to  be 
in  a  Court  of  equity,  where  he  can  at  the  same  time  get  in  the  legal  title 
and  obtain  partition. 

(b)  The  name  and  place  of  residence,  of  each  joint-tenant,  and  tenant 
in  common,  or  co-partner,  must  be  stated  in  the  petition,  if  known  to  the 
demandant.  Stat.  vol.  29.  p.  2.55  §  2.  If  unknown,  it  is  proper  to  al- 
lege it  in  the  petition,  thus  : "That  your  petitioner  is  tenant  in  com- 
mon, &c.  with  certain  other  persolis  whose  names  and  place  of  residence 
are  to  your  petitioner  unknown." 

(c)  The  widow  must  bo  made  party  in  all  cases,  unless  her  dower  has 
been  previously  aesigned.     Stat,  vol,  29.  p.  257.  §  12. 


PARTITION.  373 


Form  op  Notice. 


C.  D.  E.  F.  and  G.  H.  will  take  notice  that  a  petition  was  filed 

against  them'on  the day  of in  the  Court  of by  A.  B. 

and  is  now  pending,  wherein  the  said  A.  B.  demands  partition  of 
the  following  real  estate  [DesanjJtion']  and  that  at  the  next  term 
of  said  Court  application  will  be  made  by  the  said  A.  B.  for  an 
order  that  partition  may  be  made  of  said  premises. 


A.B. 


Dated,  &c.  f 


Affidavit  of  Publication. 

T.  C.  being  duly  sworn  says,  that  a  copy  of  the  above  notice  was 

published  on  the day A.  D. in  a  newspaper  called 

and  that  said  newspaper  was  then  in  general  circulation  in 

the  County  of 

T.  C. 

Sworn,  &c. 

Affidavit  of  personal  service. 

T.  C.  being  duly  sworn,  says,  that  on he  personally  gave 

C.  D.  E.  F.  and  G.  H.  [or   to    W.  X.  the  agent   or   attorney,  of 
C.  D.  E.  F.  and  G.  IL]  a  true  copy  of  the  above  notice,  (a). 

T.C. 

Sworn  to,  &,c. 


(a)    The  notice,  if  personal,  must  be  given  to  each   and  every  person 
concerned,  their  agent  or  attorney.     Slat.  vol.  2[).p.  255.  Ij  3. 


374  PARTITION. 

Or  Defence. 

No  specific  mode  of  defence,  to  a  petition  for  partition,  is  point- 
ed out  by  the  Statute,  but  as  the  petition  is  somewhat  analagous  to 
the  petition  in  Chancery,  it  is  usual  in  practice,  to  plead,  answer, 
or  demur  to  a  petition  for  partition,  in  the  same  manner,  as  to  a 
Bill  in  Chancery.     See,  Answer,  cj^c.  in  Chancery.  Jinte. 

FoKM    OF    ORDER    FOR    PARTITION. 

This  cause  came  on  to  he  heard  upon  the  petition,  answer,  SfC. 
and  was  argued  by  counsel;  on  consideration  whereof,  It  is  order- 
ed, or,  on  motion  to  the  Court  by  Mr.  O.  co7inselfor  the  plaintiff, 
It  is  ordered,  that  by  the  oaths  of  T.  O.  T.  P.  and  T.  U.  one  full 
and  equal  third  part  of  the  lands  in  the  said  petition  described  be 
assigned  and  set  off  to  the  said  T.  S.  as  her  dower  estate,  (a),  and 
that  by  the  like  oaths  of  the  same  T.  O.  T.  P.  and  T.  U.  partition 
be  made  of  said  lands  subject  to  said  dower  estate,  in  the  following 
proportions,  to  wit,  to  the  said  A.  B.  one  equal  fourth  part,  to  the 
saidv',  D.  one  equal  fourth  part,  to  the  said  E.  F.  one  equal  fourth 
part ,  and  to  the  said  G.  H.  one  equal  fourth  part;  and  it  is  further 

ordered,  that  a  writ  of  partition  issue  to  the  Sheriff  of County, 

(b).  commanding  him  to  cause  said  dower  to  be  assigned,  and  said 
partition  to  be  made  accordingly,     (c). 


(a)  The  dower  is  to  be  assigned  by  the  commissioners,  and  in  case  the 
estate  is  situated  in  two  or  more  Counties,  or  two  or  more  tracts,  the  com- 
missioners may  assign  the  dower  in  one  or  more  of  the  Counties,  or  in  one 
or  more  of  the  tracts;  or  they  may  assign  it  in  such  a  manner  that  it  may 
be  contained  in  the  share  or  shares  aparted  to  one  or  more  of  the  proprietors, 
and  such  share  or  shares,  may  be  made  larger,  as  the  same  may  be  less  val- 
uable by  reason  ofsiich  dower  therein;  or  the  commissioners  may  make  par- 
tition of  the  residue  of  the  estate,  after  having  assigned  the  dower,  leaving 
that  part  of  the  estate  assigned  for  dower,  to  be  partitioned  after  the  death 
of  the  tenant  in  dower.  S.'at.  vol.  29.  p.  257.  §  13.  The  assignment  of  dower, 
and  the  partition  of  the  estate,  after  t'he'court  have  fixed  upon  the  propor- 
tion to  which  each  proprietor  is  entitled,  is  entirely  a  matter  of  discretion 
with  the  commissioners  Whether  that  discretion  has  been  properly  exer- 
cised or  not,  may  be  callod  in  question  on  the  return  of  their  proceedings, 
but  cannot  be  controlled,  either  by  the  order  for  partition  or  the  writ. 

{b).  If  the  lands  lie  in  more  than  one  County,  the  writ  may  be  directed 
to  the  Sheriff  of  either  County.     Stat.  vol.  29,  p.  255.  J  4. 

(c).  The  Court  in  their  discretion  Esay  order  the  share  of  the  demandant 
only  to  be  set  off  and  leave  the  residue  of  the  estate  undivided. 


PARTITION.  -T5 


Form  op  writ  of  Partition,  (a). 
[Seal.]     The  State  of  Ohio, County,  ss. 

To  the  Sheriff  of County,  (&).  Greeting. 

Wc  ("ommand  vou,  that  without  delav,  by  the  oaths  of  T.  O. 
T.  P.  and  T,  U,  you  cause  T.  S.  widow  of  T.  T.  late  of  &c.  de- 
ceased, to  be  endowed  of  one  full,  third  part  of  the  following  real 
estate,  situate,  &c.  \_Dcscrihe  the  lands  as  in  the  petition.'\  and 
also,  that  in  like  manner,  and  by  the  like  oaths  of  the  same  T.  O. 
T.  P  and  T.  U.  you  cause  partition  to  be  made  of  the  same  lands 
subject  to  said  dower  estate,  among  the  following  persons,  and  in 
the  following  proportions,  to  wit,  to  A.  B.  one  equal  fourth  part 
to  C.  D.  one  equal  fourth  part,  to  E.  F.  one  equa]  fourth  part,  and 
to  G.  H.  one  equal /oM/'Z/i  part,  and  that  your  proceedings  in  the 
premises,  you  distinctly  certify,  under  your  hand,  to  our  Court  of 

Commovi  Pleas  within  and  for  the  said  County  of together 

with  this  writ. 

Witness,  T.  T.  President  Judge  of  our  said 

Court  of  Common  Pleas,  this day  of A.  D. 

Attest.  T.  C.  Clerh. 

(a).  Beforo  the  writ  issues  the  parties'  may  conpent  tn  i  partition,  which 
when  recorded  is  valid.  Slat.  vol.  2\).  p.  '?,W.  ^  7.  Tills  provision  sieins 
to  liave  been  intended  to  meet  that  class  of  cases,  where  tome  oftlie  projjri- 
etors  are  inlants,  and  whoie  jjuardians  mny  appear  Im  Court  on  tlie  return  of 
the  writ  and  consent  to  a  partition  "hicli  will  be  biiidiiij^  on  the  infants, 
and  at  liie  same  time  save  cott.     Ibid.  \  14. 

{h).     Tlie  County  named  in  tlic  order  of  Court. 


376  PARTITION. 


Report  of  Co3imissioners  on  Partition  made. 


A.  B.  ^ 

vs.  >  Partition Com.  Pleas County. 

C.  D.  et  al.  ) 


We  the  Commissioners  appointed  in  this  cause,  to  assign  dower 
to  T.  S.  widow  of  T.  T.  late  of,  &c.  deceased,  in  the  following 
real  estate,  situate,  &c.  [describe  the  lands  as  in  the  writ\  and  also 
to  make  partition  of  the  same  lands,  subject  to  said  dower  estate, 
between  A,  B.  C.  D.  E,  F.  and  G.  H,  and  having  been  duly  sworn, 
upon  actual  view  of  the  premises,  do  assign  to  the  said  T.  S.  for  her 
dower  estate,  so  much  of  said  lands  as  is  contained  within  the  fol- 
lowing limits:  [Hei'e  set  out  the  description  hy  vietes  and  bounds.l  * 
And  we  do  also  set  off  and  assign  to  the  said  A.  B.  in  severalty, 
for  his  share  of  said  lands,  so  much  thereof  as  is  contained  within 
the  following  limits:  [Here  set  out  the  description  by  7?ietes  and 
bounds.']  And  we  do  also  set  off  and  assign  to  the  said  C.  D.  in 
severalty,  &c.  [Proceed  in  the  same  manner  to  assign  to  each  his 
share.] 

Given  under  our  hands  this day  of day  of A. 

D. . 


(Signed.) 

If  in  the  opinion  of  the  Commissioners,  partition  of  the  estate 
cannot  be  made,  without  manifest  injury,  it  is  their  duty  to  report 
the  same  to  the  Court,  and  to  make  out  and  return  a  just  valuation 
of  the  estate.  Stat.  vol.  29,  p.  256,  §  8.  The  report  may  be  in 
the  following  form: 

Report  of  Valuation  by  Commissioners. 

[Proceed  as  in  the  last  precedent  to  the  *] — And  upon  further 
view  of  the  premises  we  are  of  opinion,  that  said  lands  cannot  be 


PARTITION.  877 

divided  without  manifest  injury  to  the  same,  and  thereupon  we  do 

estimate  the  value  thereof,  subject  to  said  dower  estate,  at  ■ 

dollars. 

Given  under  our  hands  this day  of A  D.  — — . 

(Signed.) 

The  report  of  the  Commissioners  is  attached  to  the  writ  which 
is  returned,  by  the  Sheriff,  to  the  Court  endorsed,  thus: 


Sheriff's  Return. 

I  have  executed  this  writ,  by  the  oaths  of  the  within  named 
Commissioners,  whose  report  is  herewith  returned. 


A.  T,  Sheriff"  of County, 


Dated,  &c. 


No.  1.     Report  of  Partition  confirmed. 

On  motion  to  the  Court  by  Mr.  O.  Counsel  for  the  Petitioner  and 
upon  producing  the  proceedings  of  the  Sheriff,  and  also  the  report 
and  proceedings  of  the  Commissioners  hereinbefore  appointed,  and 
the  same  being  examined.  It  is  ordered  that  said  proceedings  and 
report  be  and  the  same  are  hereby  approved  and  confirmed;  and 
that  the  said  parties  hold  in  severalty  the  shares  set  off  and  assign- 
ed to  each  respectively  by  the  said  Commissioners:  and  it  is  fur- 
ther ordered  that  the  costs  and  expenses  of  this  suit  taxed  to 

dollars,   be  paid  within days,  by  the  parties  in  the  following 

proportions,  to  wit,  (Src:   («)  and  in  default  thereof  that  execution 
issue  therefor. 


(a)  The  costs  and  expenses,  are  to  be  tax^d  accorJing  to  equity,  having^ 
regard  to  the  interest  of  the  parties,  and  the  benefit  each  may  derive  from 
the  partition.  Stat,  vol,  29,  p.  2'^S,  \  10.  In  some  parts  of  the  State  it  i« 
luual  to  include  in  the  bill  of  costs,  reasonable  counsel  f«es. 

Yt 


378  PARTITION. 

Upon  the  return  of  the  Commissioners,  that  partition  cannot  be 
made  without  manifest  injury  to  the  estate,  any  one  or  more  of  the 
parties  may  elect  to  take  the  estate  at  the  valuation  of  the  Commis- 
sioners, upon  making  payment  to  the  other  parties;  and  the  Sheriff 
is  authorized  to  make  a  deed  accordingly.  Stat.  vol.  29,  p.  256, 
§8. 


No.  2.     Order  confirming  an  election  by  one  of  the  par. 

TIES,    AND    DIRECTING    THE    SheRIFP    TO    MAKE    DEED. 

On  motion  to  the  Court  by  Mr.  O.  Counsel  for  the  Petitioner, 
and  upon  producing  the  proceedings  of  the  Sheriff  and  the  report 
and  proceedings  of  the  Commissioners  hereinbefore  appointed,  and 
the  same  being  examined:  It  is  ordered  that  said  proceedings  and 
report  be  and  the  same  are  hereby  approved  and  confirmed,  and 
thereupon  the  said  A.  B.  electing  to  take  said  estate  at  the  said 
valuation  of  said  Commissioners,  and  having  paid  to  the  said  C. 
D.  E.  F.  and  G.  H.  their  respective  proportions  of  the  appraised 
value  thereof,  the  said  estate  is  hereby  adjudged  to  the  said  A.  B. 
and  the  said  Sheriff  is  ordered  to  execute  a  deed  in  fee-simple  for 
the  same  to  the  said  A.  B.  according  to  the  statute  in  such  case 
made  and  provided:  And  it  is  further  ordered,  &c.  [^Conclude  as 
in  No.  1.] 


Form  of  Sheriff's  Deed,  to  party  electing  to  take  the 

ESTATE. 

To  all  to  whom  these  presents  shall  come — Greeting: 

Whereas  on  the day  of A.  D. ,  A.  B.  of,  &c.  filed 

his  certain  petition  in  the  Court  of  Common  Pleas,  within  and  for 
the  County  of against  C.  D.  E.  F.  and  G.  H.  demanding  par- 
tition of  certain  real  estate  hereinafter  described,  and  whereas  such 
proceedings  were  had  upon  said  petition,  that  the  Commissioners 
appointed  by  said  Court  to  make  partition  of  said  estate,  made  re- 
port, that  partition  of  the  same  could  not  be  made  without  manifest 
injury,  and  that  the  value  thereof  was dollars:  and  whereas  at 


PARTITION.  379 

the Term  of  said  Court  A.  D. the  said  report  of  said  Com- 
missioners was  approved  and  confirmed  by  said  Court,  and  the  said 
A.  B.  electing  to  take  said  estate  at  the  valuation  of  said  Commis- 
sioners, and  having  paid  to  the  said  C.  D.  E.  F.  and  G.  H.  their 
respective  proportions  of  the  appraised  value  thereof,  the  said  Court 
did  adjudge  said  estate  to  the  said  A.  B.  and  did  order  the  said  She- 
riff to  execute  a  deed  in  fee-simple  for  the  same  to  the  said  A.  B« 
all  w^hich  will  more  fully  appear  reference  being  had  to  the  records 
of  said  Court:  Now,  Therefore,  I,  W.  X.  the  Sheriff  aforesaid, 
in  consideration  of  the  premises,  and  by  virtue  of  the  powers  in  me 
vested  by  law,  do  by  these  presents  grant,  bargain,  alien,  and  con- 
vey unto  the  said  A.  B.  and  unto  his  heirs  and  assigns  forever  the 
said  real  estate  so  adjudged  as  aforesaid  to  the  said  A.  B.  and  which 
is  bounded  and  described  as  follows,  to  wit:  [Describe  the  lands  as 
in  the  petition.']  with  all  and  singular  the  appurtenances. 

To  have  to  hold  the  said  premises  to  him  the  said  A.  B.  and  to 
his  heirs  and  assigns  forever. 

In  testimony  whereof,  I  hereto  set  my  hand  and  seal,  as  Sheriff 
as  aforesaid,  this day  of A.  D. . 

W.  X.  ) 

Sheriff  of ■  County,    jj 

Executed  and  delivered 
in  our  presence, 

T.-X. 
M.  X. 


The  State  of  Ohio, County,  ss. 

Be  it  remembered,  that  on  this dav  of  A.  D. 


before  mc  one  of  the  Justices  of  the  Peace  within  and  for  the  county 
aforesaid,  personally  came  W.  X.  and  acknowledged  the  fore- 
going instrument  to  be  iiis  free  and  voluntary  act  and  deed  a« 
Sheriir  of  said  county  of . 

S.  li.  Jxis.  Peace. 


380  PARTITION. 

If  partition  cannot  be  made  and  neither  of  the  parties  elect  to 
take  the  estate,  the  Court,  on  motion  of  the  demandant,  will  order 
the  estate  to  be  sold  by  the  Sheriff,  in  the  same  manner  as  lands 
are  sold  upon  judgments  at  law.     Stat.  vol.  20,  p  25G,  §  9. 


Order  to  sell  the  Estate. 


On  motion  to  the  Court  by  Mr.  O.  counsel  for  the  Petitioner,  and 
upon  producing  the  proceedings  of  the  Sheriff',  and  the  i^eport  and 
proceedings  of  the  Commissioners  hereinbefore  appointed,  and  the 
same  being  examined,  It  is  ordered  that  said  proceedings  and  re- 
port be,  and  the  same  are  hereby  approved  and  confirmed;  and 
thereupon  neither  of  the  parties  electing  to  take  said  estate,  at  the 
valuation  thereof,  as  returned  by  said  Commissioners;  on  motion 
of  the  Petitioner,  It  is  ordered  that  said  estate  be  sold  at  public 

auction,  by  the  Sheriff  of  said  county  of according  to  the 

statute  in  such  case  made  and  provided. 

The  Sheriff,  upon  receiving  a  certified  copy  of  this  order,  will 
proceed  to  advertise  and  sell,  as  upon  judgments  at  law,  and  return 
his  proceedings  accordingly. 


Confirmation  of  Sheriff's  sale,   deed  ordered,  and  money, 

distributed. 

On  motion  to  the  Court  by  Mr.  O.  counsel  for  the  Petitioner 
and  upon  producing  the  proceedings  of  the  Sheriff  and  the  sal  3 
by  him  made  in  pursuance  of  a  former  order  of  this  Court  and  the 
same  being  examined,  It  is  ordered  that  said  proceedings  and  sale 
be  and  the  same  are  hereby  approved  and  confirmed  ;  and  there- 
upon it  appearing  that  the  consideration  money  of  said  estate  has 
been  paid  by  said  purchaser  into  the  hands  gf  the  Sheriff,  it  is 
ordered  that  the  Sheriff  execute  and  deliver  to  the  said  purchaser 
a  deed  in  fee  simple  for  said  estate  ;  and  it  is  further  ordered  that 
out  of  the  same  consideration  money,  the  said  Sheriff  pay  the 


PARTITION.  381 

costs  and  expences  of  this  suit,  amounting  to dollars  (a),  and 

that  he  distribute  the  residue  thereof  between  the  said  parties  in 

the  following  proportions,  to  wit,  To  A,  B. dollars :  To  C.  D. 

dollars,  &c. 


Form  of  Sheriff's  deed  to  purchaser. 


To  all  to  v/hom  these  presents  shall  come — Greeting  : 

Whereas  on  the day  of A.  D. A.  B.  of,  cfec. 

filed  his  certain  petition  in  the  Court  of  Common  Pleas  within 
and  for  the  County  of against  E.  F.  G  H.  and  C.  D.  de- 
manding partition  of  certain  real  estate  hereinafter  described,  and 
whereas  such  proceedings    were  had  upon  said  petition  that  at 

term  of  said  Court  A.  D.  the  SheritTof  said   County 

of was  ordered  to  sell  said  real  estate  at  public  auction,  and 

the  said  Sherifl'having  caused  the  same  to  be  duly  advertised,  did 
on  the day  of A.  *D.  sell  said  real  estate  at  public  auc- 
tion to  T.  S.  for  the  sum  of  dollars,  which  sale  was  after- 
wards at  the  term  of  said  Court  A.  D. approved  and 

confirmed  and  the  said  Sheriff"  ordered  to  execute  and  deliver  a 
deed  in  fee  simple  to  the  said  purchaser  for  said  estate  ;  all  which 
will  more  fully  appear  reference  being  had  to  the  records  of  said 
Court.  Now,  therefore,  I,  W.  X.  the  ShGriff"  aforesaid,  in  con- 
sideration of  the  premises,  and  by  virtue  of  the  powers  in  me 
vested  by  law,  do  by  these  presents  grant,  bargain,  alien  and  con- 
vey unto  the  said  T.  S.  and  unto  his  heirs  and  assigns  forever  the 
said  real  estate,  so  sold  as  aforesaid  and  which  is  bounded  and  des- 
cribed as  follows,  to  wit,  [Dcsci-ibc  the  land  as  in  the  petition,'] 
with  all  and  singular  the  appurtenances,  to  have  and  to  hold  the 
said  premises  to  him  the  said  A.  B.  and  to  his  heirs  and  assigns  for- 
ever. 

In  testimony  whereof,  [Conclude  as  in  Shcrijf  deed,  ante.  370] 


[u)  Ske,  ante.  377.  note  {a). 


382  DOWER. 


Dower. 


The  widow  of  any  person  dying,  is  endowable  ofono  fu]l  equal 
third  part  of  all  the  real  estate,  both  legal  and  equitable,  of  which 
her  husband  was  seized,  as  an  estate  of  inheritance,  at  any  time 
during  the  coverture.     Stat.  vol.  29.  p.  250.  §  1. 

The  most  common,  and,  at  this  time,  perhaps  the  universal  rem- 
edy, for  enforcing  the  assignment  of  dower,  upon  the  direct  ap- 
plication of  the  widow,  is  \^j  petition  in  Chancery,  under  the  Sta- 
tute; although  the  common  law  writ  of  dower,  has  been,  and  prob- 
ably still  may  be,  resorted  to.     1  Ohio  Rep.  99.  Ohio  Conds  45. 

Dower  is  also  frequently  assigned  upon  proceedings  in  partition 
and  in  sales  by  Administrators.  See,  Partition  and  Sales  hy  Ad- 
ministrators. 


FoR.M  OF  Petition  for  Dower. 

To  the  Court  of  Common  Pleas  within  and  for  the 
County  of («).  and  State  of  Ohio;  in  Chancery  sitting. 

A,  B.  of,  &c. represents  that  T.  B.  late  of,  SfC.  departed 

this  life  on  or  about  the day  of A.  D. leaving  your 

Petitioner  his  widow,  and  C.  B.  and  D.  B.  his  heirs  at  law  and  legal 
representatives,  (b).  That  the  said  T.  B.  during  coverture  with 
your  Petitioner  was  seized,  as  an  estate  of  inheritance,  of  the  follow- 
ing real  estate,  situate,  &c.  [descriptioii]  in  which  your  Petitioner 

is  entitled  to  dower;  and  that  your  Petitioner  on  or  about in 

a  peaceable  manner,  requested  the  said  C.  B.  and  D.  B.  to  assign 


(a)  When  the  lands  lie  in  several  Counties  the  petition  must  be  prefer- 
red in  the  County  where  the  principal  messuage  of  the  deceased  is  situated 
Slat.  vol.  29.  p.  251. 5  11- 

[h).  The  heir  or  other  person  having  the  next  immediate  estate  of  in- 
heritance, must  be  made  defendant.     Idid.  ^  9. 


DOWER.  383 

reasonable  dower  in  said  premises  to  your  Petitioner,  which  they 
refused  to  do.  (a).  Your  Petitioner  therefore  prays  that  said  C.  B. 
and  D.  B.  may  be  made  defendants  to  this  petition,  that  they  may 
answer  the  same,  and  that  reasonable  dower  in  said  premises 
may  be  assigned  to  your  Petitioner,  and  that  she  may  have  such 
other  and  further  relief  in  the  premises  as  shall  seem  equitable. 

By  T.  S.  her  Sol. 


The  petition  is  filed  with  the  Clerk  of  the  proper  Court,  who 
issues  process  as  in  other  cases  in  chancgry.  See,  J.nte,  265.  De- 
fence is  also  made  by  plea,  answer  or  demurrer  as  in  other  cases 
in  chancery.     See,  Ante.  265. 


Form  of  Decree  for  the  assignment  of  dower. 


This  cause  came  on  to  he  heard  upon  the  petition,  answer,  repli- 
cation, 6fC.  and  was  argued  by  counsel,  on  consideration  where- 
of, oY,  On  motion  of  the  court  hi/  Mr.  O.  counsel  for  the  Petitioner, 
It  is  ordered  that  the  said  Petitioner  be  endowed  of  one  full  equal 
third  j)art  of  the  lands  in  the  said  petition  described;  and  it  is  further 
ordered  that  a  writ  issue  to  the  Shcrilf  of  the  County  of com- 
manding him,  that  by  the  oaths  of  three  judicious,  disinterested  men 
of  the  vicinity,  who  arc  not  of  kin  to  either  of  said  parties,  he  cause 
such  dower  to  be  set  ofl'and  assigned  to  the  said  Petitioner,  accor- 
ding to  the  Statute  in  such  case  made  and  provided. 


(a).     Arequest  to  assign  dower  ouglit  to  be  niade  whenever  it  is  practi- 
cable, otherwise  costs  may  be  decreed  against  the  Petitioner. 


384  DOWER. 


Form  of  writ  for  the  assignment  or  Dower. 

[Seal.]         The  State  of  Ohio County,  ss. 

To  the  Sheriff  of County:  Greeting: 

We  command  you,  that  without  delay,  by  th§  oaths  of  three  ju- 
dicious, disinterested  men  of  the  vicinity,  who  arc  not  of  kin  to  ei- 
ther of  the  parties  interested,  you  cause  to  be  set  off  and  assigned 
to  A.  B.  of,  &c.  widow  of  T.  B.  late  of  &c.  deceased,  one  full 
equal  third  part  of  the  following  real  estate,  situate,  &c.  [Describe 
ike  lands  as  in  the  petition']  in  pursuance  of  an  order  lately  made 
in  our  said  Court  of  Common  Pleas  within  and  for  the  said  County 
of in  a  certain  petition  for  dower,  wherein  the  said  A.  B.  is  Peti- 
tioner and  C.  D.  and  D.  B.  respondents;  and  that  your  proceedings 
in  the  premises,  you  distinctly  certify  under  your  hand  to  our  said 
Court  of  Common  Pleas,  on  the  first  day  of  their  next  Term,  and 
have  you  then  there  this  writ. 

Witness,   T.  T.  President  Judge  of  our 
said  Court  of  Common  Pleas,  this day  of A.  D. 

Attest.  T.  C.    Clerh. 

Under  this  writ,  the  SherifTis  bound  to  select  three  men,  such  as 
are  described  in  the  writ,  and  see  that  the  proper  oath  be  adminis 
tered  to  them,  and  if  necessary  assist  them  in  makinsr  the  assicrn- 
ment.     He  then  returns  the  writ  endorsed  thus: 


Sheriff's  Return. 

By  the  oath  of  A.  E.  S.  P.  and  T.  U.  three  judicious,  disinteres- 
ted men  of  the  vicinity,  who  are  not  of  kin  to  either  of  the 
parties,  I  have  caused  to  be  set  off  and  assigned  to  the  within  nam- 
ed A.  B.  as  her  dower  estate,  so  much  of  the  real  estate  within 


DOWER.  885 

described  as  is  contained  within  tiie  following  boundaries  [Set  out 
the  metes  and  hounds  specially.'\ 

F.  M.  Sheriff  of County. 

Dated,  (Sec. 

Sheriff's  assignment  confirmed  and  writ  of  seisin  ordered. 


Onmotion  to  the  Court  by  jlr.  O.  counsel  for  the  Petitioner,  and 
upon  producing  the  proceedings  of  the  Sheriff  and  the  assignment 
of  Dower  io  the  Petitioner  by  him  made  in  pursuance  of  a  former 
order  of  the  court,  and  the  same  being  examined,  It  is  ordered  that 
said  proceedings  and  assign  nent  of  do^vcr  be  and  the  same  are  here- 
by approved  and  conlirmed,  and  that  the  said  A.  B.  stand  endowed 
of  so  much  of  said  real  estate  as  is  contained  within  said  assign- 
ment, and  bounded  as  follows  \_S^t  oullhr,  metes  and  bounds  as  in 
the  She7'ijf's  return,  {<i).  ]  And  it  is  further  ordered  that  a  writ  of 
seisin  issue  to  said  Sheriff  commanding  him  to  deliver  to  said  A.  B, 
full  possession  of  the  premises  assigned  to  her  as  aforesaid:  And  it 
is  further  ordered  that  the  costs  of  this  suit,  amounting  to dol- 
lars, be  paid  by within days  and  in  default  thereof  that 

execution  issue  therefor  as  upon  judgments,  at  law. 

For:\i   of  writ  of  Seisin. 

[Seal.]     The  State  of  Ohio County,  ss. 

To  the  Sheriff  of  the  County  of Greetino: 

We  command  you,  that  without  delay,  you  cause  A.  B.  of,  &c. 
widow  of  T.  B.  late  of,  ccc.  deceased,  to  have  full  and  peaceable 
possession  of  the  following  real  estate,  situate,  &ic.  [describe  the 
lands  as  in  the  order  of  Court,']  and  which  by  our  Court  of  Com- 
mon Pleas  within  and  for  the  County  of w;is  lately  adjudged 


(a).     It  seems  to  be  necessary  to  enter  the  me.tet  and  bounds  upon  the  re- 
cord.   Slat. vol.  29.  p.  251.  }  li. 

Zz 


886  DOWER. 

to  the  said  A.  B.  for  her  dower  estate,  as  widow  of  the  said  T.  B. 
and  of  this  writ  make  legal  service  and  due  return. 

Witness,     T.   T.  President  Judge  of  our  said 
Court  of  Common  Pleas,  this day  of A.  I). 

Attest.  T.  C.  Clerk. 


SALES  OF  REAL  ESTATE  BY  ADMINISTRATORS.  387 


SALES  OF  REAL  ESTATE  BY  ADMINISTRATOR*. 


Form  of  Petition. 


To  the  Court  of  Common  Pleas  within  and  for  the  County  of  ■ 
and  State  of  Ohio. 


A.  B.  administrator  of  C.  D.  of,  &c.  deceased,  intestate,  repre- 
sents, that  the  person:il  property  of  said  intestate  is  insufficient  to 
discharge  the  debts  of  the  estate,  (a);  that  the  said  intestate  died 
seized  in  fee-simple  of  the  following  real  estate,  situate,  &c  ,  [De- 
scriptioni  and  leaving  P.  D.  his  widow,  and  S.  D.  and  T.  D,  his 
heirs  at  law  and  legal  representatives,  (6):  Your  Petitioner  there- 
fore prays,  that  the  said  P,  D.  S.  D.  and  T.  I),  may  be  made  de- 
fendants to  this  petition,  and  that  the  writ  of  subpoena  may  accord- 
ingly issue  against  them,  (c)  that  they  may  be  compelled  to  answer 
all  and  singular  the  premises:  that  the  dower  estate  of  said  P.  D. 
in  said  premises  may  be  assigned,  and  that  your  Petitioner  may  be 
authorized  to  sell  and  convey  so  much  of  said  real  estate,  as  will 
discharge  the  debts  of  said  intestate,  with  incidental  charges,  under 
such  regulations  as  are  provided  b}^  law.   (d) 

By  S.  T.  his  Any. 

The  petition  is  filed  with  the  Clerk  of  the  proper  county,  who 
issues  process  as  in  other  cases  in  Chancery.     See  ylyzfc.  205.        * 

Defence  is  made  by  plea,  ansvv'er  or  demurrer  as  in  Chancery. 
See  Ante.  272. 


(a)  If  the  estate  be  insolvent  it  must  be  so  alleged  in  the  petition.  Stat, 
vol.  29,  p.  2:ir.,  5  29. 

(b)  The  widow  and  the  heir,  or  other  person  havingr  tlie  next  estate  of 
inheritance,  it' known  to  the  adininisjtrator  must  be  tnnde  delendunts.  If  not 
known,  the  same  proctieilings  may  be  liad,  as  in  like  cases  in  Chancery. 
Slat.  vol.  29,  /;.  2  <7,  J  :J1.     Si  k,  .'Intc.   2.")(i. 

(c)  The  di'iL-ndaiilH  iiiui-t  tie  survod  with  procrs.'!,  or  otherwise  notified 
of  tlie  pendancy  of  the  pcLilion,  in  liie  manner  prescribed  in  the  act  direct- 
ing the  mode  of  iirocecding  in  Chancery.  !Slat.  vol.  29,;;.  237,  }  IJl.  Seb 
ante.  256. 

(d)  If  the  estate  be  insolvent  tlie  prayer  iu  lor  the  sale  of  the  n-hole  pro- 
perty. 


888  SALES  OF  REAL  ESTATE  BY  ADMINISTRATORS. 


Appointment  of  Guardian  ad  litem,  an-d  nis  Acceptance. 

On  motion  to  the  Court  by  Mr.  O.  counsel  for  the  Petitioner,  It 
is  ordered  that  E.  F.  be  appointed  Guardian  ad  litem  to  the  infant 
defendants  S.  T.  and  E.  T.  and  thereupon  the  said  E.  T.  appear- 
ed in  open  Court  and  accepted  said  appointment.     See  Ante.  28  L 

Okder  of  Appraisement  and  Assignment  of  Dower. 

On  motion  to  the  Court  by  Mr.  O.  counsel  for  the  Petitioner.  It 
is  ordered,  that  the  said  P.  D.  be  endowed  of  one  full,  equal,  third 
part  of  the  following  real  estate  in  the  petition  mentioned,  to  wit: 
\_Description,'\  and  it  is  further  ordered,  that  A.  N.  O.  N.  and  U- 
N.  being  first  duly  sworn,  do  upon  actual  view  of  the  premises, 
set  off  and  assign  the  said  dower  to  the  said  P.  D.  and  make  return 
of  such  assignment  together  with  a  just  valuation  of  said  real  estate 
subject  to  said  dower,  to  the  next  Term  oj  this  Court. 

It  is  the  duty  of  the  administrator  to  furnish  the  appraisei's  with 
a  certified  copy  of  this  order;  upon  the  back  of  which,  or  upon  a 
paper  annexed,  the  appraisers  certiiy  their  proceedings  thus: 

Rlport  of  Appraisers  and  Assign.ment  of  Dower. 

To  the  Court  of  Common  Pleas  of County. 

In  obedience  to  the  within  order,  we,  having  been  first  duly  sworn 

or  affirmed,  upon  actual  view  of  the  premises,  do  set  ofl"  and  assign 

to  the  within  named  P.  D.  for  her  dower  estate,  so  much  of  the  real 

estate  within  described  as  is  contained  wathin  tlie  following  metes 

and  bounds,  to  wit:  \^Description,'\  and  we  do  estimate  the  just 

value  of  said  real  estate,  subject  to  the  dower   aibresaid,  at 

dollars. 

(Signed. 

Dated,  &c. 
If  there  be  no  widow,  the  order  of  Appraisement  may  be  thus: 


SALES  OF  REAL  ESTATE  BY  ADMINISTRATORS.  389 


Order  of  ArPRAisEME!4T. 

On  motion  to  the  Court  by  ]\Ir.  O.  counsel  for  the  Petitioner,  It 
is  ordered,  that  A.  N.  O.  N.  and  U.  N.  being  first  duly  sworn,  do, 
upon  actual  view  of  the  premises,  make  a  just  valuation  of  the  fol- 
lowing real  estate,  to  wi';  [De  scrip 'on,']  and  that  they  return  such 
valuation  to  the  next  Term  of  this  Court. 

Report  of  Appraisement. 

To  the  Court  of  Common  Pleas  of County. 

In  obedience  to  the  witliiii  order,  we,  having  been  first  duly 
sworn  or  affirmed,  upon  actual  view  of  the  premises,  do  estimate 
the  just  value  of  the  within  described  real  estate  at dollars. 


Dated,  &c. 


(Signed.) 


Order  of  Sale. 


On  motion  to  the  Court  by  Mr.  O.  counsel  for  the  Petitioner,  and 
upon  producing  the  assignment  of  dower  and  appraisement  herein" 
made  by  A.  N.  O.  N.  and  U.  N.  under  a  former  order  of  this 
Court,  It  is  ordered,  that  the  said  A.  B.  pror-ecd  according  to  law 
to  sell  the  real  estate  in  said  petition  described,  subject  to  the  said 
dower  estate  of  the  said  P.  D.  and  upon  the  following  terms,  to 
wit:  One-third  cash  in  hand,  one-third  in  one  year,  and  the  residue 
in  two  years  with  interest  from  the  day  of  sale,  to  be  secured  by 
mortgage  on  the  premises,  (a)  And,  it  is  lurlher  ordered,  that  the 
said  A.  B.  make  return  of  his  proceedings  in  the  premises  to  the 
next  Term  of  this  Court. 


(a)  The  Court  fix  the  tfrais  cf  sale,  bul  no  credit  ciin  Le  extended  be- 
yond llie  period  of  three  jcara.  Slal.  vol.  '2'.',  ji.  'S.]H,  }  Hi!.  This  btatutc 
makes  no  provision  lor  tliu  contirniuiion  of  tlie  a^^ij^nment  ol'douer,  nor  lor 
obtaiuing  possession  of  the  dower  estate  by  the  widow. 


390  SALES  OF  REAL  ESTATE  BY  ADMINISTRATORS. 


Return  of  Sale  made  by  Administrator. 

In  pursuance  of  an  order  made  in  this  cause  at term,  I  sold 

to  W.  X.  at  public  auction  on  the day  of between  the 

hours  of and at the  real  estate  in  said  petition  de- 
scribed, subject  to  the  dower  estate  of  the  said  P.  D.  as  hereinbe- 
fore assigned,  for  the  sum  of dollars,  (b)  having  given  notice 

of  said  time  and  place  of  sale,  by  advertising  the  same  for  four 
weeks  successively  prior  to  said  day  of  sale,  in  tiie a  newspa- 
per printed  in  the  county  of 

A.  B.  Admr.  of  C.  D. 
Dated,  (fee. 


Sale  Confir3ied  and  Deed  ordered. 

On  motion  to  the  Court  by  Mr.  O.  counsel  for  the  Petitioner, 
and  upon  producing  the  retuni  of  the  proceedings  and  sale  made 
by  the  said  Petitioner  as  hereinbefore  ordered,  and  the  Court  hav- 
ing examined  the  same,  and  being  satisfied  that  said  sale  has  in  all 
respects  been  legally  made.  It  is  ordered,  that  the  same  be  and 
hereby  is  approved  and  confirmed,  and  that  the  said  Petitioner  exe- 
cute and  deliver  to  said  purchaser,  a  deed  in  fee-simple,  for  the 
real  estate  so  by  him  sold  as  aforesaid. 


Form  of  Administrator's  Deed. 

To  all  to  whom  these  presents  shall  come — Greeting: 

Whereas  at  the term  of  the  Court  of  Common  Pleas  with- 
in and  for  the  County  of and  State  of  Ohio,  A.  D. in 

a  certain  petition  for  the  sale  of  real  estate,  wherein  A.  B.  as  ad- 

(b)     If  a  credit  be  given,  it  must  be  eo  stated. 


SALES  OF  REAL  ESTATE  BY  ADMINISTRATORS.  391 

ministrator  ©f  C.  D,  late  of,  &c,  deceased,  was  Petitioner  and 
W.  D.  &c.  respondents,  the  said  A.  B.  as  administrator  of  said 
C.  D.  was  ordered  to  sell  at  public  auction  certain  real  estate  of 
said  intestate  hereinafter  described  ;  and  whereas  the  said  admin- 
istrator having  duly  advertised  said  real   estate,  did  on  the 

day  of  A.  D. sell  the  same  at  pubilc  auction  to  F.  W. 

of,  &c.  for  the    sum dollars,  which   sale  was  afterwards  at 

the term  of  said  Court  confirmed  and  said  administrator  or- 
dered to  execute  and  deliver  a  deed  in  fee  simple  to  said  F.  W. 
for  the  premises  so  sold  ;  all  which  will  more  fully  appear  refer- 
ence being  had  to  the  records  of  said  Court.  Now,  therefore,  I 
the  said  A.  B.  as  administrator  of  the  said  C.  D.  in  consideration 
of  the  premises  and  by  virtue  of  the  powers  in  me  vested  by  law, 
do  by  these  presents,  grant,  bargain,  alien  and  convey  to  the  said 
F.  W.  and  to  his  heirs  and  assigns  forever  the  said  tenements  so 
sold  as  aforesaid,  and  which  are  bounded  and  described  as  follows 
[describe  the  land  as  in  the  petition.^  with  all  and  singular  the 
appurtenances 

To  have  and  to  hold  the  said  premises  to  him  the  said  F.  W. 
and  to  his  heirs  and  assigns  forever. 

In  testimony  whereof  I  as  administrator  of  the  said  CD.  do 
hereto  set  my  hand  and  seal  this day  of  A.  D. . 

A.  B.  [seal.] 

Administrator  of  C.  D. 
Executed  and  delivered 
in  our  presence. 

T.  X. 

M    X. 


The  State  of  Ohio, County,  ss. 

Be  it  remembered  that  on  tliir. day  of  before  me  one 

of  the  Justices  of  the  Peace  within  and  for  the  said  County  of 
personally  came  A.  B.  and  acknowledged  the  foregoing  in- 
strument to  be  his  free  and  voluntary  act  and  deed  as  administra- 
tor of  C.  D. 

T.  M.  Jus.  Peace. 


392    SALES  OF  REAL  ESTATE  BY  GUARDIANS. 


sales  of  real  estate  by  guardians. 
Form  of  Petition. 

To  the  Court  of  Common  Pleas  within  and  for  the  County  of 
—  and  State  of  Oliio. 


A.  B.  of,  &c.  guardian  of  T.  X.  and  S.  X.  minor  children  of 
M.  X.  late  of,  &LC.  deceased,  represents,  that  the  said  minors  are 
seziedm  fee  simple,each  of  an  undivided  moiety  of  a  certain  lot  of 
land,  situate,  &c.  [^clesanption]  that  it  will  be  for  the  advantage  of 
said  minors  thai  all  their  mterest  in  said  estate  should  be  disposed  of; 
your  Petitioner  therefore  prays  that  said  minors  may  be  made  par- 
ties defendants  to  this  petition,  that  they  may  answer  the  same  by 
their  o-uardian  ad  litem  to  be  appointed  by  this  Court,  and  that  your 
Petitioner  may  be  authorized  to  sell  and  convey  all  the  interest  of 
said  minors  in  said  real  estate,  under  such  regulations  as  are  pro- 
vided by  law. 

By  T.  S.  his  Atty. 

The  Court  upon  good  cause  shown  w^ill  order  a  sale,  which 
is  to  be  conducted,  in  the  same  manner,  as  sales  made  by  adminis- 
trators of  insolvent  estates.  Stat.  vol.  29.  p.  247.  §  1.  3.  See, 
Sales  of  real  estate  hy  administrators,  ante.  387. 


MOTIONS.  393 


MOTIONS, 


A  motion  is  an  application  for  some  rule  or  order  of  the  Court? 
which  is  either  granted  or  refused.  It  is  necessary,  in  general,  to 
submit  the  motion,  viva  voce,  in  Court.  The  English  practice,  of 
applying  for  an  order,  to  a  single  Judge  at  chambers,  to  obtain 
which  it  is  essential  to  summons  the  attorney  or  agent  for  the  op- 
posite party  before  the  Judge,  docs  not  prevail  in  the  State  of  Ohio. 
Some  motions  are  granted,  as  of  course,  and  others  require  the 
grounds  to  be  stated  to  the  Court,  and  sometimes  verified  by  affida- 
vit. The  practice  in  these  respects  varies  in  diflerent  parts  of  the 
Slate,  and  it  is  impossible  to  lay  down  any  general  rule  upon  the 
subject.  The  same  diversity  of  practice  prevails,  in  relation  to 
the  service  of  notice  of  the  motion,  upon  the  opposite  party.  In 
that  class  of  motions  which  require  the  grounds  to  be  specifically 
stated,  the  following,  may  be  enumerated.  1.  For  a  new  trial.  2. 
In  arrest  of  judgment.  3.  For  time  to  decj/ire.  4.  For  further 
time  to  plead.  5.  To  consolidate  actions.  6.  For  a  change  of 
venue.  7.  To  set  aside  proceedings  for  irregularity,  &c.  In  all 
these  cases,  and  in  some  others,  the  motion,  and  the  grounds 
thereof,  should  be  reduced  to  writing,  and  filed  with  the  Clerk,  a 
reasonable  time  before  the  motion  is  called  up  for  argument.  The 
form  mav  be  thus: 


Form  of  Motion. 

A.  B.  ) 

vs.     >  In  Case. 
C.  D.  ) 

The  said  C.   D.  moves  the  Court  for  a  7icw  trial,  or,  in  arrest 
of  judgment,  tjj-c.  in  this  cause,  for  the  following  reasons: 

1.  That,  &c. 

It  is  the  better  practice,  to  enter  the  motion  upon  the  Journal, 
at  the  time  it  is  made,  thus  : 

A  A  A 


394  MOTIONS. 


Journal  entry  of  Moiion. 


In  Case. 


The  said  C.  D.  by  Mr.  O.  his  counsel,  moves  the  Court  for  a 
new  trial,  or,  in  arrest  of  judgment,  6^0.  in  this  cause,  for  reasons 
on  file. 

The  Court  will,  in  general,  require  reasonable  notice  of  the  mo- 
tion to  be  given  to  the  opposite  party,  or  his  counsel;  and  after  ar- 
gument the  motion,  is  either  granted  or  over-ruled,  with  or  w^ithout 
costs,  in  the  discretion  of  the  Court,  according  as  they  are  of  opi- 
nion that  'the  motion  ought  or  ought  not  to  ha,ve  been  made,  and 
ought  or  ought  not  to  have  been  resisted. 


Motion  to  produce  Books  and  Writings. 


The  Supreme  Court  and  Court  of  Common  Pleas,  in  the  trial  of 
actions  at  law,  are  authorized,  on  motion,  and  on  ten  days  notice 
thereof,  to  order  the  parties  to  produce  Books  and  Writings  in 
their  possession  or  power,  which  contain  evidence  pertinent  to  the 
issue,  in  cases,  and  under  circumstances,  where  they  might  be 
compelled  to  produce  the  same,  by  the  ordinary  rules  of  proceed- 
ing in  Chancery;  and  if  the  plaintifi' fail  to  comply  with  such  order, 
judgment  of  non-suit  may  be  rendered  against  him;  and  if  the  de- 
fendant fail  to  comply  with  the  same,  judgment  may  be  rendered 
against  him  by  default.  Stat.  vol.  29,  p.  76,  §  97.  This  mode 
of  proceeding  is  much  more  expeditious  and  much  less  expensive 
than  a  Bill  of  Discovery,  and  may  often  be  substituted  in  its  stead. 
The  form  of  the  notice  may  be  thus: 


MOTIONS.  3D5 


Form  of  Notice  to  produce  Books,  &c. 

A.  B.  ^ 

vs.     >  Tn  Assumpsit — Com.  Pleas. 
CD.  ) 

The  said  C.  D.  will  take  notice,  that  on  the day  of 

next,  or  as  soon  thereafter  as  counsel  can  be  heard,  application 
will  be  made  to  the  Court,  by  the  said  A.  B.  for  an  order  upon  the 
said  C.  D.  to  produce  on  the  trial  of  this  cause,  the  following, 
Books,  Sf'C.  \_D  e  script  ion. ^  in  the  possession  or  power  of  the  said 
C.  D.  and  which  contain  evidence  pertinent  to  the  issue  in  this 
cause. 

A.  B. 

Dated,  &c. 

This  notice  must  be  served  on  the  opposite  party,  at  least  ten 
days  before  application  for  the  order  is  made.  If  the  motion 
be  granted,  which  is  generally  done  as  a  matter  of  course,  and 
without  cause  shown,  the  entry  may  be  thus: 


Order  to  produce  Books  and  Writings. 


In  Assumpsit. 


A.  B.  by  Mr.  O.  his  counsel,  this  day  moved  the  Court  for  an 
order  upon  C.  D.  to  produce  upon  the  trial  of  this  cause,  the  fol- 
lowing Books,  6fC.  and  it  appearing  to  the  Court  that  due  notice  of 
this  motion  had  been  given  to  the  said  C.  D.  It  is  thereupon  or- 
dered, that  the  said  C.  D.  do  produce,  in  open  Court,  on  the  trial 
of  this  cause,  the  said  Books,  6fC.  then  and  there  to  be  in  spected, 
and  otherwise  used  as  the  Court  shall  direct. 


396  MOTIONS. 

The  Books,  &c.  must  be  produced,  on  the  trial  of  the  cause,  if 
within  the  possession  or  control  of  the  party;  but  if  not,  affidavit 
to  that  effect  must  be  made  and  filed  in  the  cause.  The  form 
mav  be  thus: 


A.  B.  ) 

vs.     >  In  Case. 
C.  D.  ) 


The  said  C.  D.  makes  oath  and  says,  that  the  Books,  <^'C.  spe- 
cified in  a  former  order  in  this  cause,  are  not,  and  at  the  time  no- 
tice to  produce  the  same  was  served  upon  him,  were  not,  and  never 
since  have  been,  in  the  possession  of  the  said  C.  D.  or  in  any  man- 
ner whatever  within  his  power  or  under  his  control,  (a) 

C.  D. 

Sworn  to,  &c. 

If  the  Books,  &c.  are  in  the  possession  of  the  party,  and  he  re- 
fuses to  produce  them,  agreeably  to  the  order  of  the  Court,  judg- 
ment of  non-suit,  or  by  default,  may  be  taken.     See  Judgments. 


{a)     Qnere:  Can  counter  affidavits,  or  other  testimony,  be  admitted  to 
falsify  the  affidavit. 


CONTINUANCE.  397 


CONTINUANCE. 


The  term  continuance  imports  the  continuing  of  a  cause  in  Court, 
by  an  entry  upon  the  records  for  that  purpose;  or  as  expressed, 
•3  Blac.  Com.  318;  from  the  time  of  the  defendant's  appearance,  it 
is  necessary  that  both  parties  be  kept  or  continued  in  Court  from 
day  to  dav,  until  the  final  determination  of  the  suit.  As  then  the 
parties,  with  their  proceedings,  should  be  regularly  before  the 
Court,  the  cause,  if  not  tried  at  the  issue  term,  should  be  continued 
by  a  proper  entry  upon  the  Journal  of  the  Court.  VI  Peter sd.  Ahg. 
169.  In  England  the  continuances  may  be  entered  at  any  time- 
6  T.  R.  G18,  1  Tidd.  183,  n.  (d).  And  the  want  of  a  continuance 
is  aided  by  the  appearance  of  the  parties.  1  Wih.  40.  VI.  Petersd. 
Abg.  171.  So  the  want  of  continuances  is  aided  by  the  statute  of 
Jeofails,  and  where  error  is  brought,  such  want  shall  not  be  assign- 
ed for  error.  1  Lee's  Diet,  of  Practice  376,  VI  Petersd.  Abg.  171. 
How  far  these  principles  would  be  recognized  by  our  Courts,  re- 
mains to  be  determined,  there  being  no  reported  decisions  upon  the 
subject.  Continuances  are  granted,  of  course,  or  by  consent  or 
upon  cause  shown,  and  are  regulated  by  Rules  of  Court,  which 
vary  in  different  Circuits.  In  general,  the  grounds  for  a  continu- 
ance are  submitted  to  the  Court,  in  the  shape  of  an  affidavit,  and 
the  application  is  rejected  or  allowed,  in  the  discretion  of  the 
Court.  The  form  of  an  affidavit  for  a  continuance,  on  the  ground 
of  the  absence  of  a  witness,  may  be  in  the  form  following,  and 
wliich  can  be  readily  adapted  to  any  other  state  of  facts. 

Form  of  Affidavit  for  Continuance  for  the  absence  of  a 

Witness. 


In  Case. 


The  said  C.  D.  makes  solemn  oath,  that  E.  B.  of,  &c.  is  a  ma- 
terial witness  for  him,  in  this  cause,  without  whose  testimony,  he 


398  CONTINUANCE. 

cannot  safely  proceed  to  the  trial  thereof,  as  he  is  advised  and  verily 

believes  to  be  true:  that  on this  deponent  sent  to  the  place  of 

residence  of  the  said  E.  B.  for  the  purpose  of  serving  him  with  a 
subpoena  in  this  cause,  but  the  said  E.  B.  was  absent  on  a  journey 

to ,  from  whence  he  is  not  expected  to  return  until  some  time 

after  the  expiration  of  the  present  term  of  this  Court,  as  this  depo- 
nent is  informed  and  verily  believes  to  be  true:  that  deponent  hopes 
and  expects  to  procure  the  attendance  of  the  said  E.  B.  at  the  next 
term  of  this  Court,  and  that  this  affidavit  is  not  made  for  delay 
merely,  but  for  the  purposes  of  justice. 

C.  D. 

Subscribed  and  sworn  to  in 

open  Court,  this day  of 

A.  D.  . 

Attest— Y.   C.    Clerh. 


The  Journal  entry  of  a  continuance  may  be  in  this  form: 

A.  B.  ^ 

vs.     >  In  Case. 
C.  D.  ) 

Continued,  or.  Continued  at"the  costs  of  defendant,  or,  plaintiff. 


OATH.S.  399 


Oaths. 
Oath  to  Foreman  of  Grand  Jury. 


You  do  solemnly  swear  or  affirm,  that  saving  yourself  and  fel- 
low jurors,  you,  as  foreman  of  this  grand  inquest,  shall  diligently 
inquire*,  and  true  presentment  make,  of  all  such  matters  and  things 
as  shall  be  given  }'ou  in  charge,  or  otherwise  come  to  your  know- 
ledge, touching  the  present  service:  the  counsel  of  the  State,  your 
own  and  your  fellows,  you  shall  keep  secret  unless  called  on  in  a 
Court  of  justice  to  make  disclosures:  you  shall  present  no  person 
through  malice,  hatred  or  ill  will,  nor  shall  you  leave  any  person 
unpresented  through  fear,  favor,  or  affection,  or  for  any  reward  or 
hope  thereof:  but  in  all  your  presentments,  you  shall  present  the 
truth,  the  whole  truth,  and  nothing  but  the  truth,  according  to  the 
best  of  your  skill  and  understanding:  and  this  you  do,  as  you  will 
answer  to  God  at  the  Great  Day,  or,  under  the  pains  and  penalties 
of  perjury,     (a). 


The  like  to  the  other  Grand  Jurors. 


You  and  each  of  you  do  solemnly  swear,  or,  affirm,  that  the  same 
oath  which  A.  B.  your  foreman,  hath  now  taken,  before  you,  on 
his  part,  you  and  each  of  you  shall  well  and  truly  observe  and 
keep  on  your  respective  parts:  and  this  you  do,  as  you  shall  an- 
swer to  God  at  the  Great  Day,  or,  under  the  pains  and  penalties 
of  perjury,     (a). 

{a).    Those  foriue  are  prescribed  by  Statute.    Vol.  20. p.  97. }  H-  1~- 


400  OATllfe. 


Oath  of  Executors. 


You  do  solemnly  swear  in  the  presence  of  Almighty  God,  the 
searcher  of  all  hearts,  or,  upon  the  Holy  Evangelists  of  Almighty 
God,  or,  you  do  solemnly  declare  and  affirm,  that  this  writing  con- 
tains as  far  as  you  know  or  believe,  the  true  last  will  and  testament 
of  A.  B.  and  that  you  will  well  and  truly  perform  the  same,  by 
paying  first  the  debts,  and  then  the  legacies  contained  in  said  will, 
as  far  as  his  goods,  chattels,  credits  and  effects  will  extend,  and 
the  law  charge  you,  and  that  you  will  make  a  true  and  perfect  in- 
ventory of  all  the  said  goods,  chattels,  credits  and  effects,  and  also 
a  just  account  thereof  as  required  by  law:  and  this  you  do,  as  you 
shall  answer  to  God  at  the  Great  Day,  or,  under  the  pains  and 
penalties  of  perjury. 


Oath  of  Adjiinistrators. 


You  do  solemnly  swear,  in  the  presence  of  Almighty  God,  the 
searcher  of  all  hearts,  or,  upon  the  Holy  Evangelists  of  Almighty 
God,  or,  or  you  do  solemnly  declare  and  affirm,  that  A.  B.  de- 
ceased, died  without  any  will,  as  far  as  you  know  or  believe,  and 
that  you  will  well  and  truly  administer  all  and  singular  the  goods, 
chattels,  credits  and  effects  of  the  said  deceased,  and  pay  his  debts 
as  far  as  his  goods,  chattels,  credits  and  effects,  will  extend,  and  the 
law  charge  you,  and  that  you  will  make  a  true  and  perfect  invento- 
ry of  all  the  said  goods,  chattels,  credits  and  effecls,  and  also  a  just 
account  thereof  as  required  by  law.  and  this  you  do,  as  you  shall 
answer  to  God  at  the  Great  Day,  or,  under  the  pains  andpenalties 
of  perjury. 


Oath  op  Petit  Jurors. 

You  and  each  of  you  do  solemnly  sivear,  in  the  presence  of  Al- 
mighty God,  the  searcher  of  all  hearts,  or,  upon  the  Holy  Evangelists 


OATHS.  401 

of  Almighty  God,  or,  you  and  each  of  you  do  solemnly  declare  and 
affirm,  that  you  will  well  and  truly  try  the  issue  joined  between  the 
partiesin  this  cause,  wherein  A.  B.  is  Plaintiff  and  C.  D.  Defendant, 
and  a  true  verdict  give  according  to  the  evidence;  unless  with- 
di'awn  by  the  parties  or  dismissed  by  the  Court:  and  this  you  do, 
as  you  skall  anncer  to  God  at  the  Great  Day,  or,  under  the  pains 
and  penalties  of  perjury. 

Oath  of  witnesses  before  Jury. 

You  and  each  of  you  do  solemnly  swear,  in  the  presence  of  Al- 
mighty God,  the  searcher 'of  all  hearts,  or,  upon  the  Holy  Evange- 
lists of  Almighty  God,  or,  you  and  each  of  you  do  solemnly  declare 
and  affirm,  that  you  will  testify  the  truth  the  whole  tru'h  and  no- 
thing but  the  truth,  in  the  cause  now  pending  here  before  the  jury 
wherein  A.  B.  is  Plaintiff  and  C.  D.  Defendant:  and  this  you  do,  as 
you  shall  answer  to  God  at  the  Great  Day,  or,  under  the  pains  and 
penalties  of  perjury. 

The  like  before  the  Couut. 


You  and  each  of  you  do  solemnly  swear,  in  the  presence  of  Al- 
mighty God,  the  searcher  of  all  hearts,  or,  upon  the  Holy  Evange- 
lists of  Almighty  God,  or,  you  and  each  of  you  do  solemnly  de- 
clare and  affirm,  that  you  will  testify  the  truth,  the  whole  truth 
and  nothing  but  the  truth  touching  the  matters  now  under  examin- 
ation before  the  Court:  and  this  you  do,  as  you  shall  answer  to  God 
at  the  Great  Day,  or,  under  the  pains  and  penalties  of  perjury. 

Bbb 


402  SELECT  WRITS. 


Select  Writs. 

No.   1.     Attachment  for  contempt  of  Court. 

[Seal.]     The  State  of  Ohio Count3%  ss. 

To  the  Sheriff  of  said  County,  Greeting. 

We   command  you  *  that  you  attach  E.  F.  so  as  to  have  his 
body  before  our   Court  of  Common  Pleas  within  and  for  the  said 

County  of forthwith,  or,  on  the  first  day  of  their  next  term,  to 

answer  us  of  a  certain  contempt  by  him  lately  committed  against 
us,  as  it  is  said,  and  further  to  do  and  receive  what  our  said  Court 
shall  in  that  behalf  consider:  Hereof  fail  not,  and  have  you  then 
there  this  writ.     («). 

Witness,  T.  T.  President  Judge  of  our  said  Court 

of  Common  Pleas,  this day  of A.  D. 

Attest.  T.  C.  Clerk. 

No.  2.     Habeas  Corpus,  to  give  evidence. 


[Proceed  as   in  No.  1.  to  the  * that  the  body  of  E.  B.  in 

our  prison  under  your  custody,  as  it  is  said,  detained,  under  safe 
and  secure  conduct,  by  whatever  name  the  said  E.  B.  may  be 
called  in  the  same,  you  have  before  the  Judges  of  our  Court  of 


(a).  It  is  customary  to  endorse  upon  the  writ  the  substance  of  the  com- 
plaint thus:  "For  not  appearing  and  answering  a  Bill  in  Cliancery  exhib- 
ited against  him  by  A.  B."  or,  "for  not  appearing  as  a  witness  in  behalf  of 
A.  B.  having  been  duly  summoned,"  or,  "for  not  appearing  to  settle  up  the 
estate  of  A.B.  as  administrator  thereof,"  &c. 


SELECT  WRITS.  403 

Common  Pleas  within  and  for  the  said  County  of at  the  Court 

house  of  said  County,  on  the  10^/^  day  of  this  instant  month  at  eight 
o'clock  before  noon  of  the  same  day,  then  and  there  to  testify  the 
truth  of  his  knowledge  in  a  certain  cause  in  our  said  Court  now 
depending,  and  then  and  there  to  be  tried,  between  A.  B.  Plaintiff 
and  C.  D.  Defendant:  and  then  immediately  after  the  said  E.  B. 
shall  have  so  given  his  testimony,  to  return  him  to  the  same  prison 
under  like  safe  and  secure  conduct:  Hereof  fail  not,  &c.  \_Conclude 
as  in  No.  1. 


No.  3.       Special  Mandate  froji  Supreme  Court    to  Court 
OF  Common  Pleas,  to  carry  Judgment  or  Decree  in 

TO    EXECUTION. 


[Seal.J     The  State  of  Ohio County,  ss. 

To  the  Court  of  Common  Pleas  within  and 

for  the  said  County  of Greeting. 

We  command  you,  that  you  cause  A.  B.  to  have  execution  of  a 
certain  Judgment,  or,  Decree,  rendered  in  his  favour  against  C.  D. 

by  our  Supreme  Court  within  and  for  the  said  County  of on 

the day  of A.  L). for  the  sum  of dollars,  rfam- 

ages  and dollars  costs. 

Witness,  T.  T.  Chief  Judge  of  our  said  Supreme 

Court  this day  of A.  D. 

Attest,  T.  W.  Clerk. 


404  SELECT  WRITS. 

No.  4.  Procedendo. 

[Seal.]     The  state  of  Ohio County,  ss. 

To  the  Court,  &c.     [As  in  the  lastprecedenf]. 

We  being  moved  with  certain  causes  in  our  Supreme  Court 
within  and  for  the  said  county  of do  command  you,  that  with- 
out delay,  in  a  certain  plaint  against  0.  l).  at  the  suit  of  A.  B,  be- 
fore you  now  depending  undetermined,  you  proceed,  in  such  man- 
ner, according  to  the  law  of  the  land,  as  you  shall  see  proper,  any 
other  writ  to  the  contrary  in  any  thing  notwithstanding. 

Witness,  &c.  [Conclude  as  in  last  precedentj. 
No.   5.  Prohibition. 

[Seal.]     The  State  of  Ohio County,  ss. 

To  the  Court  (a)  of  Common  Pleas  within 

and  for  the  County  of Greeting: 

Whereas  A.  B.  has  exhibited  before  you  his  Petition  against  his 
wife  C.  D.  seeking  a  divorce,  and  dissolution  of  the  marriage  con- 
tract between  them,  as  we,  in  our  vSupreme  Court  within  and 
for  the  County  aforesaid,  are  informed:  Therefore  we  command 
you,  if  it  be  so,  that  you  absolutely  supersede  that  plaint  from  being 
further  proceeded  in  before  you  in  that  behalf. 

Witness,  &c.  [Conclude  as  in  No.  3.] 


{&)     The  writ  may  be  directed  to  the  Court  and  to  the  party;    and  an 
attachment  will  lie  upon  it.     Fitz.  N.  B.  40. 


SELECT  WRITS.  405 

No.  6.  Restitution  in  Ejectment. 

[Seal.]    iThe  vState  of  Ohio County,  ss. 

To  the  Sheriff  of  said  County,  Greeting: 

Whereas  by  our  writ  reciting,  that  whereas  John  Doe  on    the 
day  of A.  D.  in  our  Court  of  Common  Fleas  within 


and  for  the  said  County  of recovered  against  Joseph  Sridlh 

his  term  yet  to  come  in  [Two  messuages,  4'C.  as  in  the  Habere 
Facias']  situate  in  your  baiUwick,  which  John  Rogers  had  demised 
to  the  said  John  Doc  for  a  term  not  yet  ended,  we  lately  command- 
ed you,  that  you  should  cause  the  said  John  Doe  to  have  his  pos- 
session of  his  term  aforesaid  yet  to  come,  in  the  tenements  afore- 
said with  the  appurtenances,  and  how  you  should  execute  that  our 
writ  you  should  make  appear  to  the  Judges  of  our  said  Court  of 
Com.mon  Pleas  on  the  first  day  of  their  then  next  Term,  by  virtue 
of  which  writ  you  caused  the  said  John  Doc  to  have  possession  of 
his  term  aforesaid  in  the  tenements  aforesaid,  as  by  your  return 
thereof  appears:  and  because  that  writ  did  wrongfully,  unadvised- 
ly and  en  oneously  issue  out  of  our  said  Court  of  Common  Pleas, 
therefore  we  command  you  that  without  delay  you  restore  to  the 
said  Joseph  Smith  his  full  possession  of  said  tenements  with  the  ap- 
purtenances, from  him  so  unjustly  taken  as  aforesaid;  and  how 
you  shall  execute jhis  writ  make  appear  to  the  Judges  of  our  said 
Court  of  Common  Pleas  on  the  first  day  of  their  next  term,  and 
have  you  then  there  this  writ. 

Witness,  &;c.  [Conclude  as  in  No.  1]. 


406  SELECT  WRITS. 


No.    7.  SuBPfENA    FOR    WITNESSES. 

[seal.]     The  State  of  Ohio County,    ss. 

To  T.  R.  &c.  [names  of  witnesses]   (a)  Greeting: 

We  command  and  strictly  enjoin  you  and  each  of  you,  that 
layino"  aside  all  manner  of  businesses  and  excuses  whatsoever,  you 
and  each  of  you  be  and  appear  in  your  proper  persons  before  the 
Judo-es  of  our  Court  of  Coiiimon  Pleas,  within  and  for  the  said 

County  of at  the  v'ourt  House  in  said  County,  on  the  2\st 

day  of  September  next,  at  10  o'clock  forenoon,  (/>)  then  and  there 
to  testify  what  you  and  each  of  you  may  know,  in  a  certain  ac- 
tion in  said  Court  pending,  wherein  A.  B.  is  plaintiff  and  C.  D. 
defendant :  and  this  do  you  under  the  penalty  of  the  law. 

Witness,  <fcc.  [Conclude  as  in  No.   1.] 


(a)  The  names  of  all  the  witnesses  are  to  be  inserted  in  one  subpcena. 
Stat.  vol.  29.  p.  58.  \  2.  In  some  parts  of  the  State  the  subpcEna  is  di- 
rected to  the  Sherilf,  bui  the   above  seems  to  be  the  better  form.  Lill.  Ent. 

670. 

(b)  In  a  subpoena,  duces  tecum,  say^  "and  also  that  you  bring  with  you  and 
produce  at  tl.e  time  ;ind  place  aforesaid  a  certain  deed,  &c.  [Here  give  a 
description  of  the  deed,  jjapei-i,  tellers,  S,c.  to  be  produced]  then  and  there 
to  testify,  &c." 

Upon  a  subpoena  duces  tecum,  a  witness  is  bound  to  produce  a  paper 
wkcih  he  has  in  his  actual  custody,  though  the  legal  right  and  property  in 
such  paper  belongs  to  ar:other.  The  Court  however,  in  all  such  cases, 
will  exercise  their  discretion  in  deciding  what  papers  shall  be  produced  ; 
and  under  what  qualihcations,  as  respects  the  interest  of  the  witness. 
The  witness  is  bound  to  produce  them,  tiiough  there  be  a  regular  way  pre- 
scribed by  law  for  obtaining  such  document.  1  Holt.  239.  3  Com.  Law 
Rep.  85.  Tlie  validity  of  an  excuse  for  not  producing  papers  is  to  be  de- 
termined by  the  Court  and  not  the  witness.  9  East.  473.  An  action  will 
lie  against  a  party  who  refuses  to  produce  a  paper  in  his  actual  possession  : 
and  it  is  no  defence,  that  the  legal  title  to  such  paper  is  in  another  per- 
son.    1  Camp,  1.4. 


SELECT  WRITS.  407 


No.  8.      Veni7-e  Facias  for  Grand  a\d  Petit  Jurors, 

[seal.]     The  State  of  Ohio County,  ss. 

To  the  Sheriff  of  said  County — Greeting  : 

We  command  you,  that  without  delay  you  summons  A.  B.  &c. 
[names  of  Grand  J^irors']  to  be  and  appear  before  our  Court  of 

Common  Pleas,  within  and  for  the  County  of at  the  Court 

House  in  said  County  on  the  day  of at  ten  o'clock  fore- 
noon, («)  and  so  fi'om  day  to  day  until  discharged,  then  and  there 

to  serve  as  Grand  Jurors  within  and  for  the  said  County  of 

and  also  that  without  delay  you  summons  E.  F.  &c.  [iiames  of 
Petit  Jurors']  to  be  and  appear  in  in  like  manner  before  the  same 
Court  at  the  time  and  place  aforesaid,  to  serve  as  Petit  Jui'ors 
within  and  for  the  County  aforesaid :  and  how  you  shall  execute 
this  writ  make  appear  to  oiu-  said  Court  on  the  first  day  of  their 
next  term,  and  have  you  then  there  this  writ. 

Witness,  &c.  [Conclude  as  in  No.   1.] 


No.  9.       Citation  to  Administrators  or  Guardians. 


[seal.]     The  State  of  Ohio  County,  ss. 

To  A.  B.' Aministrator  of  C.  D.  or.  Guardian 
of  C.  D.  and  E.  F. — Greeting  : 

We  command  and  strictly  enjoin  you,  that  laying  aside  all  man- 
ner of  businesses  and  excuses  whatsoever,  you  be  and  appear  bc- 


(aj  Tlic  Statute  requires  tlie  Vcidrc,  in  the  Court  or  Common  Pleas, 
to  bi3  made  returnable  at  10  o'clock  A.  M.  This  provision  does  not  em- 
brace tlic  .Supicme  Court,  and  tiie  I'^enirc  in  that  Court  is,  in  general, 
made  returnable  at  9  o'clock,  A.  31.  A  Venire  for  a  Petit  Jury  alone  can 
be  readily  formed  from  the  above  precedent. 


408  SELECT  WRITS. 

fore  our     Court   of   Common  Pleas    within  and  for    the    said 

County  of at  the  Court  House  in  said  County,  forthwith,  or, 

on instant,  or,  on  the  first  day  of  their  next  term,  to  show 

cause,  lohy  your  accounts  should  not  he  finally  closed,  or,  why  you 
should  not  he  removed.  6fC. 

Witness,  &c.  \_Conclude  as  in  No.  1."] 


No,    10.       SU3IM0NS~IIP0N    PLEA    IN     ABATEMENT.    Stat.    Vol.  29.  p. 

68.  §  .50. 

[seal.]     The  State  of  Ohio County,  ss. 

To  the  SherifFof  said  County —  Greeting  : 

We  command  you  to  summons  E.  F.  and  G.  H.  to  appear  be- 
fore our  Court  of  Common  Pleas,  within  and  for  the  County 
aforesaid,  at  the  Court  House  in  said  County  forthwith  [if  in  term 
time^  or,  on  the  first  day  of  their  next  term  [if  in  vacation']  to  an- 
swer unto  A.  B.  in  a  certain  action  of  assumpsit,  now  pending  in 
said  Court  wherein  the  said  A.  B.  is  plaintiff  and  one  C.  D.  defen- 
dant, and  wherein  the  said  C.  D.  by  liis  plea  in  abatement  duly 
filed,  according  to  the  Statute  in  such  case  made  and  provided, 
has  alleged  that  the  said  E.  F.  and  G.  H.  arc  with  him  jointly  li- 
able to  the  said  A.  B.  in  the  action  aforesaid,  and  have  you  then 
there  this  wrtt. 

Witness,  &c.     [Conclude  as  in  No.    1.] 

No.    11.  Writ  of    Certiorari  from    the  Supreme  Court  to 
THE  Court  of  common  Pleas,  or  other  inferior  jurisdictions. 

[seal.]     The  State  of  Ohio County,  ss. 

To  the  Judges  of  the  Court  of  Common  Pleas  within  and 

for  the  said   County  of or.  To  the  Commissioners  of  said 

County  of ,  &c. — Greeting  : 

Because  in  the  record  and  proceedings  and  also  in  the  making 
of  certain  orders,  in  a  certain  plaint  lately  before  you,  wherein 


SELECT  WRITS  409 

A.  B.  was  complainant  and  C  D.  was  defendant,  error  has  in- 
tervened, as  it  is  said  to  the  damage  of  the  said  C.  D.  and  we 
being  wilhng  that  such  error,  if  any  there  be,  should  be  corrected, 
and  sure  and  speedy  justice  done  1o  the  parties  aforesaid  in  this 
behalf,  do  command  you,  that  without  delay  you  send  to  us  dis- 
tinctly and  openly,  an  authenticated  transcript  of  the  records  and 
proceedings  aforesaid,  with  all  things  concerning  the  same,  tind 
this  writ;  so  that  the  s-^me  being  inspected,  we  may,  at  the  next 
term  our  Supreme  Court,  to  be  holden  within  and  for  the  said  Coun- 
ty of on  the day  of next,  cause  further  to  be  done 

thereupon,  what  of  right  and  according  to  the  laws  of  the  land 
ought  to  be  done,   (a) 

Witness,  T.  T.  Chief  Judge  of  the   Supreme  Court  of  the 
State  of  Ohio,  this day  of A.  D. . 


Attest 


T.  C.   Clerk,  S.  C.  County. 


(a)  This  writ  is  allowed  only  in  extraordinary  cases.  See,  anip.  243. 
The  assignment  of  errors,  and  all  the  other  proceedings  upon  this  writ,  are 
Eubstant  ally  ihe  same  as  in  cases  of  writs  of  error.  See,  ERROR. 
Anle.  200. 

C  cc 


410  CIRCUIT  COURT. 

CIRCUIT    COURT. 


Removal  op  causes  from  the  State  Courts  to  the  Circuit 

Court. 


If  a  suit  be  commenced  in  a  State  Court  against  an  alien,  or  by 
a  citizen  of  the  State  in  which  the  suit  is  brought  against  a  citizen 
of  another  State,  (a)  and  the  matter  in  dispute  exceed  the  value  of 
five  hundred  dollars,  exclusive  of  costs,  (h)  and  the  defendant  shall? 
at  the  time  of  entering  his  appearance  in  such  State  Court  (c)  file 
a  petition  for  the  removal  of  the  cause  for  trial  into  the  next  Cir- 
cuit Court,  to  be  held  in  the  District  where  the  suit  is  pending,  and 
offer  sufficient  surety  for  his  entering,  in  such  Court,  on  the  first 
day  of  its  session,  copies  of  the  process  against  him,  and  also  for 
his  there  appearing,  and  entering  special  bail  in  the  cause,  if  special 
bail  was  origuially  requisite  therein,  the  Slate  (Jourt  shall  accept 
the  surety,  and  proceed  no  farther  in  the  cause;  and  any  bail  ori- 
ginally taken,  shall  be  discharged;  and  such  copies  being  entered 
in  the  Circuit  Court,  the  cause  shall  there  proceed  in  the  same 
manner  as  if  it  had  been  brought  there  by  original  process.  And 
any  attachment  of  the  goods  or  estate  of  the  defendant,  by  the  ori- 


(aj  Suits  ai^ainst  an  alien  include  only  suits  between  all  alien  and  a  State, 
or  a  citizon  llierfof.  4  Dull.  11,   5  Craitch  363. 

{b)  Tftlie  State  Court  be  satisfied  that  tlic  sum  in  dispute  exceeds  five 
hundred  dolhivs  exclusive  of  costs,  and  thereupon  tbe  case  be  removed  to 
the  Circuit  Court  and  llie  pliiintirf  declare  for  a  lirger  sum,  lie  cannot,  by 
aftervvfirds  releasing  part  of  his  demand  and  tliereby  reducing  it  below  five 
hundred  dollars,  oust  the  Circuit  Court  of  its  jurisdiction.   1  Peters.  220. 

(c)  If  the  defendant  suffer  the  term  to  which  the  suit  is  brought  and  at 
which  he  appeared,  and  the  next  succeeding  term,  to  pass  over  without  fil- 
ing his  petition  for  removal,  a  petition  afterward  filed  will  not  give  the  Cir- 
cuit Court  jurisdiction,  altiiough  the  State  Court  suffer  the  petition  to  be 
filed,  as  of  the  proper  teirn,  when  appearance  was  entered  nunc  pro  tunc. 
1  Peters-  44.  If  a  cause  bf  improperly  removed,  it  is  the  duty  of  the  Cir- 
cuit Court  to  remand  it  whence  it  came;  and  on  error  from  the  Cinuit  Court, 
the  Supreme  Court  will  direct  the  cause  to  be  bo  remanded.  1  Peters.  44, 
4  Cranch  421.  The  defendant  after  removing  the  cause  to  the  Circuit 
Court  and  appearing  there  caunot  except  to  the  jurisdiction  of  the  Circuit 
Court.  2  Wheat.  221,  2  Ball.  396. 


CIRCUIT  COURT.  411 

ginal  process,  shall  hold  such  goods  or  estate,  to  answer  the  final 
judgment,  as  by  the  laws  of  such  State  they  would  have  been  hold- 
en  to  answer  final  judgment,  had  it  been  rendered  by  the  Court  in 
which  the  suit  commenced.  Act  of  Congress,  2Ath  Sept.  1789,  § 
12.  {a) 


Form  of  Petition. 


To  the  Court  of  Common  Pleas  of  County,  in  the  State  of 

Ohio: 

The  petition  of  C.  D.  of  the  county  of ,  in  the  State  of  Ken- 

'tucky,  represents,  that  on  the day  of A.  D. he  was 

arrested  at  the  said  county  of in  said  State  of  Ohio,  by  the 

Sheriff  of  said  county,  by  virtue  of  a  writ  of  capias  ad  responden- 
dum, issued  by  the  Clerk  of  this  Court  at  the  suit  of  A.  B.  in  a  plea 
of  Assumpsit,  to  his  damage,  one  thousand  dollars,  as  by  him  is  al- 
leged, which  writ  bears  date  the day  of A.  D. And 

your  Petitioner  further  represents,  that  at  the  time  of  the  issuing 
and  service  of  said  writ,  your  Petitioner  was,  and  still  is  a  citizen 
of  the  said  State  of  Ohio,  and  that  the  matter  in  dispute,  in  said  suit 
between  your  Petitioner  and  the  said  A.  B.  exceeds  in  value  the 


{a)  If  in  any  action  conimpncod  in  a  State  Court,  tlie  title  of  lan<l  be  con- 
ceir.od,  and  the  parties  arc  citizens  of  tiie  same  .'!^tate,  and  the  matter  in 
dispute  exceed  the  vnluc  of  live  liuridrod  dullirs,  exclusive  of  costs,  either 
pnrly,  before  the  trial,  shall  state  to  the  Court,  and  maUc;  atlidavit  if  requir- 
ed, that  he  c'aitns,  and  shall  rely  upon  a  rii^ht  or  title  to  the  land,  under 
grant  from  a  State,  other  than  that  in  which  the  suit  is  pending,  and  pro- 
duce the  original  grant,  or  an  exetnplilication  thereof,  except  where  the  loss 
of  [)ublic  records  shall  put  it  out  of  his  power,  and  shall  move  that  the  ad- 
verse party  inform  the  Court  whether  he  claims  a  right  or  title  to  the 
land  under  a  grant  from  the  State,  in  which  the  cuit  is  pending;;  the  said 
adverse  party  shall  give  such  information,  or  otherwise  not  be  allowed  lo 
plead  such  grant,  or  give  it  in  evidence  upon  the  trial;  and  if  he  informs  that 
lie  does  claim  under  such  gran',  the  party  claiming  under  the  grant  first 
mentioned,  may  then,  on  motion,  remove  the  cause  for  trial  to  the  next 
Circuit  Court,  to  be  holden  in  such  District,  but  if  he  is  the  defendant,  he 
shall  do  it  under  the  same  regulations  as  in  the  before  mentioned  case  of  the 
removal  of  a  cause  into  such  Court  by  an  alien;  and  neither  party  removing 
the  cause,  shall  be  allowed  to  plead,  or  give  evidence  of,  any  other  title 
than  that  by  him  stated  as  aforesaid,  ns  the  ground  of  his  claim.  Act  of 
Congrefs,  24//:  Sep.  1789,  \  12. 


412  CIRCUIT  COURT. 

sum  of  five  hundred  dollars,  exclusive  of  cost:  Your  Petitioner 
therefore  prays,  that  said  suit  may  be  removed  for  trial  into  the 
next  Circuit  Court  of  the  United  States  within  and  for  the  Pistrict 
of  Ohio,  according  to  the  act  of  Congiess  in  such  case  made  and 
provided:  and  your  Petitioner  now  offers  E.  F.  and  G.  H.  as  his 
sureties  for  entering,  in  said  Circuit  (  ourt,  on  the  first  day  of  its 
next  session,  copies  of  the  process  against  him,  and  also  for  his 
there  appearing,  and  entering  special  bail,  according  to  law. 


C.  D. 

The  petition  is  filed  with  the  Clerk,  and  the  C^Iourt  being  satis- 
fied, by  affidavit  or  otherwise,  of  the  truth  of  the  matters  set  forth 
in  the  petition,  will  order  the  cause  to  be  removed.  The  form  of 
the  order  may  be  thus : 


Order  of  Removal. 


In  Assumpsit. 


This  day  came  the  said  C.  D.  and  filed  his  petition  for  the  re- 
moval of  this  cause  to  the  next  Circuit  Court  of  the  United  States 
within  and  for  the  District  of  Ohio,  and  the  same  having  been 
heard  and  considered,  and  the  Court  being  satisfied  of  the  truth 
of  the  facts  therein  stated,  and  the  said  C.  D.  offering  E.  F.  and 
G.  H,  as  his  sureties  for  entering,  in  said  Circuit  Court,  on  the  first 
day  of  its  next  session,  copies  of  the  process  against  hin".,  and  also 
for  his  there  appearing,  and  entering  special  hail,  according  to  law, 
which  sureties  are  accepted  by  the  Court,  It  is  therefore  ordered, 
that  the  said  A.  B.  no  further  prosecute  his  suit  n  this  Court,  and 
that  the  same  may  be  removed  into  the  said  Circuit  Court,  accord- 
ing to  law.  (a) 


(a)  If  appearance  bail  were  given,  say,  "and  it  is  further  ordered  that 
E.  S.  and  T.  S.  the  appearance  bail  in  this  cauBe,  be  and  they  are  hereby 
dischnrjed.'- 


CIRCUIT  COURT.  413 


Form  of  Bond. 


Know  all  men  by  these  presents  that  we  C.  D.  E.  F.  and  G.  H. 

are  held  and  firmly  bound  unto  A.  B.  in  the  penal  sum  of dol- 
lars to  the  payment  of  which  well  and  truly  to  be  made,  we  do 
hereby  jointly  and  severally   bind  ourselves,  our  heirs,  executors 

and  administrators,  sealed  with  our  seals,  and  dated  this day 

of A.  D. . 

The  condition  of  the  above  obligation  is  such,  that  whereas  the 
said  A.  B.  hath  this  clay  applied  to  the  Court  of  Common  Pleas 

within  and  for  the  county  of ,  in  the  State  of  Ohio,  to  remove 

into  the  Circuit  Court  of  the  United  States  for  the  District  of  Ohio, 
a  certain  suit  now  pending  in  said  Court  of  Common  Pleas,  where- 
in the  said  A.  B.  is  plaintift".  and  the  said  C.  D.  defendant:  Now, 
if  the  said  C.  D.  shall  enter  in  said  Circuit  Court,  on  the  first  day 
of  its  next  session,  copies  of  the  process  against  him  in  said  suit,  so 
pending  as  aforesaid  in  said  Court  of  Common  Pleas,  and  shall  also 
there  appear,  and  enter  special  bail,  according  to  the  act  of  Con- 
gress in  such  case  made  and  provided,  then  this  obligation  shall  be 
void,  otherwise  in  full  force  and  virtue  in  law. 

The  Clerk  upon  the  application  of  the  party,  will  then  make  out 
copies  of  the  process  and  proceedings,  in  the  Court  of  Common 
Pleas,  and  which  must  be  fded  with  the  Clerk  of  the  Circuit  Court. 
The  form  may  be  thus : 


Form  of  Record. 


The  State  of  Ohio County,  ss. 

Be  it  remembered,  that  heretofore,  to  wit:  on  the day  of 

A.  D. A.  B.  sued  out  of  the  Clerk's  office  of  the  Court 


of  Common  Pl(>as  within  and  for  the  said  county  of a  writ  of 

capias  ad  respondendum,  against  C.  D.  in  the  words  and  figures 
following,  to  wit:  \^Iiei-e  set  out  the  writ,  verbatiyn.']  Upon  which 
writ,  T.  W.  the   Sheriff  of  said  county,  afterwards,  to  wit:   on  the 


414  CIRCUIT  COURT. 

day  of  A.  D. made  the  following  return,  to  wit 


{^Hei'e  set  out  the  return  verbatim.']  And  afterwards,  to  wit:  on  the 

day  of A.  D. the  said  C.  D.  filed  his  petition  to 

remove  this  suit  into  the  Circuit  Court  of  the  United  States  for  the 
District  of  Ohio,  and  which  petition  is  in  the  words  and  figures  fol- 
lowing to  wit:  [He}'e  set  out  the  petition,  verbatim.']  and  after- 
wards, to  wit:  on,  &c.  the  said  Court  of  Common  Pleas  made  the 
following  order  in  the  premises,  to  wit:  [Here  set  out  the  order  of 
removal  verbatim.] 

The  State  of  Ohio County,  ss. 

I,  F.  W.  Clerk  of  the  Court  of  Common  Pleas  within  and  for 

the  said  county  of do  hereby  certify,  that  the  foregoing  is  a 

true  copy  of  the  process,  and  proceedings  thereupon  had  by  the 
Court  aforesaid,  as  the  same  remain  of  record  in  my  office. 

(^'^^       In  testimony  whereof  I  do  hereto  set  my  name 
-^  SEAL,  y         and  official  seal  this day  of A.  B, 

F.  W. 


SPECIAL  ENTRIES.  416 

special  entries. 
Appointment  op  Guardian  chosen  by  Infant. 

A.  B.  aged years  on  the day  of past,  son  of  E. 

B.  deceased,  this  day  came  into  CoLirt  nnd  made  choice  of  S.  H. 
as  his  guanhan,  who  thereupon  appeard  in  open  Court  and  ac- 
cepted said  appointment  and  gave  bond  with  security  to  the  accept- 
ance of  the  Court,  in  the  penalty  of dollars    conditioned  as 

the  law  directs. 

The  like,  where  Infant  cannot  make  choice. 

,',  :Qn  motion  to  the  Court,  by  Mr.  O.  it  is  ordered  that  S.  H.  be 

appointed  guardian  of  A.  B.  aged years  on  the day  of 

past,  and  of  E.  R.  aged years  on  the day  of 

past,  infant  children  of  T.  B,  deceased,  and  thereupon  the  said 
S.  A.  appeared  in  open  Court  and  accepted  said  appointment  and 
gave  bond  with  security,  to  the  acceptance  of  the  Court,  in  the 
penalty  of dollars  conditioned  as  the  law  dii'ects. 

Tavern  license  granted 


On  motion  of  A.  B.  by  Mr.  O.  his  counsel.  It  is  ordered  that  li- 
cence be  granted  to  him  to  keep   a  Tavern  for  the  term  of  one 

year  from,  &c.  at  his  dwelling  house  in  township  in  this 

County,  upon  the  payment  of dollars. 


Letters  of  administration  granted  and  appraisers  appointed. 

A.  B.  widow  of  J,  B.  deceased  having  relinguished  her  right 
to  tha  administration  of  said  decedent's  estate,  m  favor  of  G.  H. 


416  SPECIAL  ENTRIES. 

on  motion  of  said  G.  H.  by  Mr.  O.  his  counsel,  It  is  ordered,  that 
letters  of  administration  be  granted  to  the  said  G.  H.  and  there- 
upon the  said  G.  H.  was  duly  sworn  and  gave  bond  with  securi- 
ty, to  the  acceptance  of  the  Court  m  the  penalty  of dollars 

conditioned  as  the  law  directs :  Whereupon  it  is  ordered  by  the 
Court  that  CD.  B.  D.  and  A.  D.  appraise  the  personal  property 
of  said  estate. 


Probate  of  Will. 

The  last  will  and  testament  of  A.  B.  late  of,  &c.  was  this  day 
brought  before  the  Court,  and  was  proved  by  the  oaths  of  S.  and 
T.  two  of  the  witnesses  thereto,  whose  examinations  were  redu- 
ced to  writing,  and  it  appearing  to  the  satisfaction  of  the  Court, 
that  the  said  A.  B.  at  the  time  of  executing  said  will  was  of  full 
age,  and  of  sound  mind  and  memory,  and  not  under  any  restraint, 
It  is  ordered  that  said  will  and  the  proof  so  reduced  to  writing  be 
recorded:  *  and  thereupon  on  motion  of  D.  L.  the  executor  in  said 
will  named.  It  Is  ordered  that  letters  testamentary  be  granted  to 
the  said  D.  L.  who  was  thereupon  duly  sworn,  and  gave  bond 
with  security  to  the  acceptance  of  ihe  Court,  in  the  penal  sum  of 
dollars  conditioned  accordmg  to  law. 


Letters  of  administration  granted  with  the  will  annexed. 

l^Proceed  as  in  the  last  precedent  to  the  *  — and  thereupon  D.  L. 
the  said  executor  in  said  will  named  refusing  to  act  as  such  execu- 
tor, [or,  no  executor  being  named  in  said  will]  and  E.  B.  the  widow 
of  the  said  A.  B.  having  relinquished  her  right  to  the  administra- 
tion of  said  decedent's  estate,  in  favor  of  G.  H. ;  on  motion  of  the 
said  G.  H.  It  is  ordered  that  letters  o  administration  with  the 
will  annexed  be  granted  to  the  said  G.  H.  and  thereupon  the  said 
G.  H.  was  duly  sworn  and  gave  bond  with  security,  to  the  accep- 
tance of  the  Court,  in  the  penalty  of dollars  conditioned  as 

the  law  directs :  whereupon  It  is  ordered  that  C.  D.  B.  D.  and 
A.  D.  appraise  the  personal  property  of  said  estate. 


SPECIAL  ENTRIES  41' 


Rule  for  srcuiUTY  roR  costs. 

On  motion  to  ihe  Court  by  Mr.  S.   counsel  for  the  defendant,  It  ia 

ordered  that  the  plaintiff  give  security   Pjr  costs  wllJuii if<^>j3, 

or,  by  the  first  day  of  next  term,  and  iu  default  liieicuf  thai  this  causu 
stand  dismissed  at  the  plaintiff's  cost. 

Security  for  costs  entered  in  term  time. 

S.  T.  appeared  in  open  Court  and  undertook  for  the  said  A.  B.  to 
pay  all  the  costs  that  have  accrued  and  all  the  costs  that  may  accrue, 
in  this  cause,  in  default  of  the  said  A.  B.  to  pay  the  same,  {a) 

Judgment   for   costs  against  security,  on  motion.     See,  Stat. 
Vol.  29.  p.  59.  }  5. 

On  motion  to  the  Court  by  Mr,  O.  counsel  for  the  defendant  [or 
other  person,  entitled  to  the  costs']  and  it  appearing  to  the  satisfaction 
of  the  Court,  that  S.  T.  was  security  for  cos(s  in  a  certain  acli' n 
heretofore,  pending  in  this  Court,  wherein  C.  D.  was  plaintiff  ami 
E.  F.  defendant,  and  wherein  judgment  for  costs  was  rendered 
ogainst  the  said  CD.  and  which  costs,  to  the  amount  of dol- 
lars remain  unpaid;  and  it  further  appearing  to  the  satisfaction  of  the 
Court,  that  due  notice  of  this  motion  has  been  given  to  the  said  S,  T. 
It  is  therefore  considered  that  the  said  defendant  c^'c.  recover  of  the 

said  S.  T.   the  said  sum  of dollars  the  costs  due  and  unj)aid, 

and  that  execution  issue  therefor  accordingly. 


(a)  If  Eccuiiiy  is  to  be  nrivcii  in  vacation,  the  endorsemont  may  be  made 
on  the  writ,  thus  :  "I,  !S.  T.  of  &c.  do  undertake  for  the  witliin  plain- 
tiff, lo  pay  all  tlio  costs  that  have  accrued  and  all  tlie  costs  that  may  ac- 
crue, in  tills  cause,  in  default  of  the  plaintiff  to  pay  the  same. 

S.T. 
Ddd 


4J8  SPECIAL  ENTRIES. 

Verdict  set  aside  and  new  tial  granted. 

This  cause  came  on  to  be  heard  upon  motion  of  the  defendant  to 
set  aside  a  verdict  hereinbefore  rendered  and  to  grant  him  a  new 
trial,  and  was  argued  by  counsel ;  on  consideration  whereof,  It  is 
ordered  that  said  verdict  be  and  the  same  is  hereby  set  aside,  and 
that  a  new  trial  be  had  between  the  parties  at  the  next  term  of  this 
Court;  and  thereupon  on  motion  of  the  defendant  this  cause  is  con- 
tinued. 

Juror  withdrawn  and  cause  continued. 

This  day  came  the  parties  by  their  attorneys,  and  thereupon  came 
a  jury,  to  wit,  E.  F.  &c.  who  being  empannelled  and  sworn  the 
truth  to  speak  upon  the  issue  joined  between  the  parlies,  by  consent 
of  the  parties  and  with  the  assent  of  the  Court,  G.  S.  one  of  the  said 
Jurors  is  withdrawn;  whereupon  it  is  ordered  (hat  the  residue  of  said 
Jurors  be  discharged,  and  that  tlie  cause  be  continued  at  the  cost 
of,  &c. 

Reference  to  arbitration. 

This  day  came  the  parties  by  their  attorneys  and  submit  ail  mat- 
ters in  difference  between  them  in  this  suit  to  the  final  determination 
of  G.  S.  and  T.  S.  and  in  case  they  disagree,  to  the  determination 
of  such  other  person  as  they  shall  choose  for  umpire,  whose  award  or 
the  award  of  such  umpire  thereupon,  ihe  parties  agree  shall  be  made 
a  judgment  of  this  Court,  and  to  such  award  or  the  judgment  to  he  en- 
tered thereon,  no  exceptions,  either  formal  or  otherwise  shall  be  taken; 
and  the  same  is  ordered  accordingly. 

Award  returned  and  Judgment  thereon. 

This  day  came  the  parlies  by  their  attorneys,  and  thereupon  a  cer- 
tain award  between  the  parties  wasproducedjin  the  words  and  figures 


SPECIAL  ENPUIf'^S.  410 

following,  to  wit,  [Here  insert  the  awiuul  vrrbafi/ii.]  uhcrei'pon   it  is 
considered,  &c.  [Enter  the  judgment  noreeahly  to  the  nivard.] 

Defendant  stJBKE^'DEIlED  uv  SrEcrAL  dail. 

G,  S.  special  bail  for  the  said  C.  D.  this  day  surrendered  the 
said  C.  D.  in  open  Cjurt  in  discharge  of  his  recognizance,  and  there- 
upon on  motion  of  the  plaintiff,  It  is  ordered  that  the  said  C.  D.  be 
committed  to  the  Jail  of  the  County,  there  to  remain  until  discharged 
by  due  course  of  law.  [If  the  defendant  is  not  prayed  into  custody 
then  after  the  icord,  "recognizance,"  say,  and  thereupon  the  said 
G,  S,  is  altogether  discharged  therefrom,  and  the  plaintiff  refusing 
to  pray  the  said  C.  D.  into  custody,  it  is  ordered  that  the  said  C  D, 
be  discharged." 

Jury  sworn  and  adjourned. 

This  day  came  the  parties  by  their  attorneys  and  thereupon  came 
a  Jury,  to  wit,  E.  F,  &c.  who  being  empannelled  and  sworn  the 
truth.to  speak  upon  the  issue  joined  between  the  parties,  and  the  evi- 
dence not  being  closed,  were  adjourned  until  to-morrow  morning  at 
nine  o'clock. 

Attachment  awarded  agafnst  a  witness. 

A.  S.  who  was  summoned  to  appear  here  this  day  as  a  witness  in 
behalf  of  G.  D.  was  solemnly  called  and  came  not,  and  thereupon 
on  motion  of  the  said  C.  D.  It  is  ordered  that  an  attachment  issue 
against  the  said  A.  S.  returnable  forthxcith,  or,  on  the  first  day  of 
the  next  term. 


'1^0  SPECIAL  ENTRIES. 


Verdict    and  Judgjient    set   aside  and    New  Tkial  granted 

This  cause  came  on  to  be  heard  upon  the  motion  of  the  defendant 
to  set  aside  the  verdict  rendered  licrein  on  Friday  last,  and  also  the 
judgment  rendered  thereupon  j  and  was  argued  by  counsel,  on  con- 
sideration whereof,  It  is  ordered  *  that  the  said  verdict  and  judgment 
be  and  (he  same  are  hereby  set  aside,  and  that  a  new  trial  be  had 
between  the  parties  at  (he  next  term  of  this  Court,  upon  the  said  de- 
fendant paving  the  costs  of  this  term;  and  thereupon  on  motion  of  the 
defendant  this  cause  is  continued,  at  his  costs. 

Motion  to  set   aside,  verdict  and  judgment,  and  for  a  New 
Trial  over-ruled. 

[Proceed  as  in  the  last  precedent  to  the^ —that  the  said  mo* 

tion  be  overruled  with  costs. 

Entry  or-  satisfaction. 


A.  B«  this  day  came  into  Court  and  acknowledge  himself  satisfied 
of  the  Judgment  thereofore  rendered  in  this  cause. 


License  to  Marrv. 

On  motion,  and  it  appearing  to  the  satisfaction  of  the  Court  that 
A,  B.  is  a  regularly  ordained  minister  of  the  Gospel,  of  the  denom- 
ination usually  called-- It  is  ordered  that  a  licence  be  granted 

to  him  authorising  him  to  solemnize  marriages  within  this  State,  so 
long  as  he  shall  continue  such  regular  minister. 


SPECIAL  ENTRIES.  421 


Sale  on  Execution  coNFiRaiED  and  deed  ordered. 

The  Court  this  day  having  examined  the  proceedings  of  the  Sheriff, 
and  the  sale  by  hitn  made  upon  the  execution  issued  in  this  cause, 
and  being  satisfied  that  said  sale  has  in  all  respects  been  made  in 
conformity  to  the  provisions  of  the  statute  in  such  case  made  and  pro- 
vided, do  order  the  Clerk  to  make  an  entry  on  the  Journal,  that  the 
Court  are  satisfied  of  the  legality  of  the  sale,  and  that  he  also  enter 
an  order  on  the  Sheriff  to  make  to  the  purchaser  a  deed  for  the  lands 
and  tenements  so  sold,  all  which  is  entered  accordingly. 

Motion  to  quash  appeal  over. ruled. 

This  cause  came  on  to  be  heard  upon  the  motion  of  the  defendant 
to  quash  the  Appeal,  and  was  argued  by  counsel,  on  consideration 
whereof,  It  is  ordered  that  said  motion  be  over. ruled,  with  costs. 

Motion  in  akrest  of  Judgjient  oveu-ruled,   and    final   Judg- 
ment  UPON   VERDICT. 

This  cause  came  on  to  be  heard  upon  the  motion  of  the  defendant 
in  arrest  of  the  judgment  herein  rendered  on  Friday  last  and  was 
argued  by  counsel,  on  consideration  whereof,  It  is  ordered  that  said 
motion  be  over-rulod;  whereupon  it  is  considered  that  the  plaintiff 
recover  of  the  defendant  the  said  sum  of— ——dollars  his  damages 

aforesaid  in  form  aforesaid  assessed,  and  also dollars  for  his 

Coals  in  this  behalf  expended. 


422  SPECIAL  ENTRIES. 


Judgment  arrested  and  leave  to  amend  Declaration. 

This  cause  came  on  to  be  heard  upon  the  motion  of  the  defendant 
in  arrest  of  the  judgment  herein  rendered  on  Monday  last,  and  was 
argued  by  counsel,  on  consideration  whereof.  It  is  ordered  that  said 
judgment  be  arrested,  with  costs:  whereupon  on  motion  of  the  plain- 
tiff, It  is  ordered  that  he  be  at  liberty  to  amend  his  declaration  with- 
in   days  upon  the  payment  of  said  costs,  and  this  cause  is 

continued. 

Writ  of  error  auASiiED. 

This  cause  came  on  to  be  heard  upon  the  motion  of  the  defendant 
to  quash  the  writ  of  error  issued  in  this  cause,  for  want  of  jurisdic- 
tion, and  was  argued  by  counsel,  on  consideration  whereof,  It  is  or- 
dered that  said  writ  of  error  be  quashed,  with  costs. 

Motion  granted    to  amend  Judgjient.     Hamer  vs.   JSVConnclU 
2  Ohio  Rep.  33,  Ohio  Conds.  240. 

This  cause  came  on  to  be  heard  upon  the  motion  of  the  plaintiff  to 
amend  the  verdict  and  judgment  in  this  cause,  and  was  argued  by 
(counsel,  on  considertion  whereof,  It  is  ordered  that  the  plaintiff  be 
at  liberty  to  amend  the  said  judgment  by  striking  out  the  name  of 
John  JirConnell,  so  as  to  make  the  same  conform  to  the  pleadings 
and  issue,  and  to  the  manifest  intent  and  operation  of  the  verdict. 

Leave  to  withdraw  demurrer  and  plead  issuably. 

On  motion  to  the  Court  by  Mr.  O.  counsel  for  the  defendant,  It  is 
ordered,  that  the  defendant  be  at  liberty  to  withdraw  his  demurrer 


SPECIAL  ENTRIES.  423 

■end  plead  issuably  within days  upon  payment  of  costs  in  re- 
pec  t  thereof. 

Judgment  for  Plaintifi'  iton  agreed  case. 

This  cause  came  on  to'be  heard  upon  a  case  agreed  between  the 
parties,  and  was  argued  by  counsel,  on  consideration  whereof,  the 
Court  are  of  opinion  that  the  law  of  the  case  is  with  the  plainlifF, 
Wliereupon  it  is  consideredj  that  the  plainliff  recover  of  the  defend- 
ant the  sum  of  — dollars  in   the  agreed  case  mentioned,  being 

the  damages  liquidated  by  the  parties,  a:tid  also dollars  for  his, 

costs  in  this  behalf  expended. 

Rule  for  attachment  for  coNTEJirT  of  court. 

Ordered  that  a  rule  be  taken  upon  A.  B.  to  be  and  appear  before 
this  Court  on  the  first  day  of  the  next  Term,  to  show  cause,  if  any 
he  have,  why  a  writ  of  attachment  should  not  issue  against  him  for  a 
contempt  of  this  Court,  in  writing  and  causing  to  be  published,  in  a 

newspaper  called   the  '  bearing  date a  certain  paper 

or   essay,  entitled and  signed which  said  paper   or 

essay,  reflects  upon  the  integrity  and  impartiality  of  this  Court,  and 
was  calculated  and  designed  to  forestall  the  public  opionion,  by  crea? 
ling  false  impressions  in  relation  to  a  certain  cause  then  pending  in 
this  Court,  and  wherein  C.  D.  was  plaintit]',  and  E.  F.  defendant, 
and  thereby  to  prevent  the  fair  and  irnpnrtial  administration  of  jus- 
tice; and  it  is  further  ordered,  that  a  copy  of  this  order,  duly  certi- 
fied by  the  Clerk  of  this  Court,  be  served  upon  the  said  A.  B.  by  the 
Sheriff  of  this  county,  at  least  twenty  days  previous  to  the  next  term 
of  this  Court. 


424  SPECIAL  ENTRIES. 


Order  tor  change  of  Vekue. 

This  cause  came  on  to  be  heard  upon  an  application  of  the  defen- 
dant to  change  the  venue  fi-om  this  County  where  the  same  is  de- 
pending, to  some  adjoining  County;  and  it  appearing  to  the  Court 
that  due  notice  of  this  application  has  been  given  to  the  Plaintiff,  and 
it  further  appearing,  that  there  cannot  be  a  fair  and  impartial  trial  of 
the  issue  joined  between  the  parties,  in  this  County.  It  is  therefore 
ordered  that  the  venue  in  this  suit  be  changed  from  this  County  to 
the  adjoining  County  of and  that  the  Clerk  of  this  Court  trans- 
mil  to  the  Clerk  of  the  Court  of  Common  Pleas  of  the  said  County  of 

the   original  writ,  pleadings,  depositions   and  other  papers 

filed  in  this  cause days  before  the  next  term  of  said  Court  in 

said  County  of — — — 

Admission  of  Attorney  and  Solicitor. 

M,  S.  an  applicant  for  admission  to  (he  Bar,  having  produced  the 
requisite  Certificates,  and  having  been  found  upon  examination,  in  all 
respects  qualified:  It  is  ordered  that  he  be  admitted  and  licensed  to 
practice  as  an  Attorney  an  Counsellor  at  law  and  Solicitor  in  chan- 
cery, in  any  of  the  Courts  of  Record  of  this  State,  whereupon  the 
said  M.  S.  appeared  in  open  Court  and  took  the  oath  required  by 
law. 

The  like  under  the  keciprocity  act. 

On  motion  to  the  Court,  by  Mr.  C.  D.and  it  appearing  that  A.  B, 
is  a  practising  Attorney  and  Counsellor  at  law,  residing  in  the  State 
of  Kcntucly,  where  by  law.  Attorneys  and  Counsellors  residing  in 
Uiis  State  are  permitted  to  practice;  It  is  ordered,  that  the  said  A.  B. 
be  admitted  to  practice  in  this  Court,  while  he  continues  to  reside  in 
the  said  State  o(  KcntucJfy,  and  while  Attorneys  and  Counsellors  at 
law  in  this  Slate  are  permitted  to  practice  in  the  Courts  of  that  Stale. 


SPECIAL  ENTRIES.  425 


Judgment  for  defendant  upon  special  verdict. 

This  cause  came  on  to  be  heard  upon  the  special  verdict  hereto- 
fore rendered  herein,  and  was  argued  by  counsel,  on  consideration 
w^hereof,  the  court  are  of  opinion  that  the  law  of  the  case  is  with 
the  defendant,  whereupon  it  is  considered  that  the  defendant  go 
hence  without  day  and  recover  of  the  Plaintiff  liis  costs  herein  ex- 
pended taxed  to dollars. 

Order  of  Common  Pleas  reversed  on  Certiorari  in  Supreme 

Court. 

This  cause  came  on  to  be  heard  upon  the  transcript  of  the  pro- 
ceedings in  the  Court  of  Common  Pleas,  and  was  argued  by  coun- 
sel, on  consideration  whereof,  this  Court  is  of  opinion  that  there 
is  error  in  the  proceedings  and  order  of  the  said  Court  of  Common 
Pleas,  in  this,  to  wit.  That,  &c.  Therefore  for  the  errors  afore- 
said, it  is  ordered  and  adjudged  that  the  order  aforesaid,  made  by 
the  said  Court  of  Common  Pleas  be  and  the  same  is  hereby  rever- 
sed, with  costs,  and  that  the  said  C.  D.  be  restored  to  all  things  he 
has  lost  by  reason  of  the  same  :  and  it  is  further  ordered  that  a  spe- 
cial mandate  issue  to  the  said  Court  of  Common  Pleas  to  carry  this 
Judgment  into  execution. 


Order  of  Common  Pleas  afeirmed  on  Certiorari  in  Supreme 

Court. 


This  cause  came  on  to  be  heard  upon  the  transcript  of  the  pro- 
ceedings in  the  Court  of  Common  Picas,  and  was  argued  by  coun- 
sel, on  consideration  whereof,  this  Court  is  of  opinion  that  there  is 
no  error  in  the  proceedings  or  order  of  the  said  court  of  Common 
Pleas:  Therefore  it  is  ordered  and  adjudged,  that  the  order  afore- 
said made  by  the  said  Court  of  Common  Please,  be  and  the  samo 
is  hereby  confirmed,  with  costs,  &c.  {^Conclude  as  in  the  last pre- 
cedent.'^ 

E  e  E 


420  SPECIAL  ENTRIES, 

JoURNAIi    ENTRY    AT    THE    COMMENCEMENT     OF    A    TeRM. 


At  a  Court  of  Common  Pleas  began  and  held  for  the  County  of 
at  the  Court,  House  in on  the day  of in  the 


year  of  our  Lord and  of  the  State  of  Ohio  the ,  Present, 

G.  S.  President,  J.  F.  E.  L,  and  A,  B.  associate  Judges  of  said 
Court.  R.  B.  Sherift'  and  T.  C.  Clerk. 


Appointment  or  Clerk. 


D.  E.  having  this  day  produced  to  the  Court,  a  certificate  from 
a  majority  of  the  Judges  of  the  Supreme  Court,  that  he  is  well  qual- 
ified to  execute  the  duties  of  Clerk  of  any  Court  of  the  same  dig- 
nity with  this  :  It  is  ordered  that  the  said  D.  E.  be  and  he  hereby 
is  appointed  Clerk  of  this  Court  for  the  constitutional  term  of  seven 
years,  and  thereupon  the  said  D.  E.  appeared  in  open  Court,  and 
having  executed  and  filed  a  bond  to  the  State  of  Ohio  in  the  penal 

sum  often   thousand  dollars,  bearing  date  this day  of 

A.  D. with  T.  D.  and  T.  O.  his  securities,  conditioned  accor- 
ding to  law,  which  is  approved  by  the  Court,  took  the  oaths  of  office 
required  by  law. 


Allowance  of  further  time  to  an  Administrator. 

On  motion  of  A.  B.  administrator  ot  C.  D.  by  Mr.  O.  his  counsel, 
It  is  ordered  that  the  said  A.  B.  have  the  further  time  of  one  year 
to  settle  up  his  accounts  as  such  administrator. 

Final  settlement  of  administrators  accounts. 


G.  B.  administrator  of  T.  B.  deceased,  this  day  settled  his  ac- 
coiints  with  the  Court,  and  a  balance  is  found  in  his  hands  due  the 

estate  of  the  said   T.  B.  of Dollars,  which  is  ordered  to  be 

distributed  according  to  law. 


SPECIAL  ENTRIES.  427 


CoMJIITMENT    FOR    CONTEMPT    OF    CoURT. 

W.  R.  a  witness  in  the  case  of  A.  B.  vs.  C.  D.  now  pending  in 
this  Court,  appearing  in  open  Court,  in  a  state  of  intoxication,  It  is 
ordered  that  he  be  imprisoned  in  the  jail  of  this  County  for  such 
contempt,  until  tomorrow  morning,  nine  o'clock. 

Order   for    administrator    to  complete    real  contract  or 

Intestate. 

This  day  A.  B.  adminstrator  of  C.  D.  deceased,  filed  his  petition, 
praying  an  order  of  this  Court  authorizing  a  deed  to  be  made  by  him 
as  such  administrator,  on  the  part  of  the  heirs  of  said  C.  D.  to  D. 
W.  in  pursuance  of  the  contract  in  said  petition  mentioned;  and 
the  Court  being  fully  advised  in  the  premises,  and  having  found 
that  said  contract  was  duly  made,  and  has  been  fully  complied  with 
Qn  the  part  of  the  said  D.  W.  as  alleged  in  said  petition,  do  order 
the  said  A.  B.  to  make,  execute  and  deliver  a  deed  in  fee-simple 
for  the  tenements  in  the  said  petitirm  described,  for  and  in  behalf 
of  the  heirs  of  the  said  CD.  to  the  said  D.  \V.  according  to  the 
statute  in  such  case  made  and  and  provided. 

Appraisement  on  execution  set  aside  and  new  one  granted. 


On  motion  to  the  ('ourt,  by  Mr.  O.  counsel  for  the  plaintiff.  It 
is  ordered,  that  the  former  appraisement  made  herein  be  get  aside, 
and  that  a  new  appraisement  be  had  at  the  costs  of 


Rule  to  plead  extended* 

On  motion  to  the  Court,  by  Mr.  O.  counsel  for  the  defendant, 
It  is  ordered,  that  the  rule  granted  herein  to  plead  on  Tuesday  last 
be  extended  thirty  days,  and  this  cause  is  continued  at  the  cost  of 


4'?8  SPECIAL  ENTRIES. 


Order  tor  the  redemption  of  land  sold  for  taxes. 

A.  B.  this  day  appeared  in  open  Court,  hy  Mr.  O.  his  counsel, 
and  made  application  to  redeem  the  following  real  estate  sold  for 

taxes  on  the day  of A.  D. to  T.  W.  to  wit:  [De- 

scriptio7i];  and  the  Court  heing  satisfied  that  due  notice  of  this  ap- 
plication had  been  given,  and  that  the  deposit  reqmred  by  law,  had 
been  made  with  the  Clerk  of  this  Court,  and  having  examined  the 
testimony  of  the  said  A.  B.  relative  to  his  right  of  redemption,  [and 
the  countei'  testi?nony  of  the  adverse  party,  if  any  be  offered,]  and 
bein^j  satisfied  that  the  said  A.  B.  is  eniitled  to  redeem  said  real 
estate,  do  order  that  the  said  real  estate  be,  and  the  same  hereby  is 
redeemed  and  restored  to  the  said  A.  B.  and  restitution  of  the  same 
is  hereby  awarded  to  him:     And  it  is  further  ordered,  that  the  said 

A.  B.  pay  the  costs  of  this  application  within days;  and  that 

the  money  deposited  with  the  Clerk  as  aforesaid  be  paid  by  him,  on 
demand,  to  the  adverse  party,   (a) 


Al^PEAL    QUASHED. 

On  motion  to  the  Court,  by  Mr.  O.  counsel  for  the  appellee.  It 
is  ordered,  that  the  appeal  taken  in  this  cause  be  and  the  same  is 
hereby  quashed,  for  the  reason  that  the  recognizance  was  not  taken 
witliin  ten  days  from  the  rendition  of  tlie  judgment,  whereupon  it 
is  considered  that  the  appellee  recover  of  the  appellant  liis  costs 
herein  expended,  taxed  to  ■ dollai's.   (h) 


(a)  This  application  should,  in  general,  be  in  writing,  in  order  that  the 
proceedings  niny  betaken  to  the  Supremo  Court,  on  Ceiiiorari,  it"  necessa- 
ry. 8  Ohio  Hep.  JiOl,  Ohio  Coiids.  587,  5  Ohio  Rep.  328,  Stat.  vol.  29,  p. 
son.  5  2,  3,  4.  A  copy  of  tliis  order  must  be  recorded,  in  the  office  of  the  re- 
corder of  deeds,  v/iiliin  thirty  days. 

(/>)  The  cause  for  quashing  the  appeal  must  be  stated  in  the  order.  Slat, 
vol.  "0.  p.  Vi9.  ^  51.  A  copy  of  tiiis  order  is  lodged  with  the  Justice, 
wiio  thereupon  issues  e.^ecation  in  the  same  mauner  as  if  no  appeal  had 
been  taken.     Ibid. 


SPECIAL  ENTRIES.  429 


Change  op  recognizance  on  appeal,  in  Common  Pleas. 

On  motion  to  the  Court,  by  Mr.  O.  counsel  for  tb.e  appellant, 
and  it  appearing  to  the  satisfaction  of  the  Court,  that  the  testimony 
of  T.  W.  who  is  security  in  the  recognizance  for  the  appeal  of  this 
cause,  is  required  by  the  appellant.  It  is  thereupon  ordered,  that 
said  recognizance  be  changed,  and  that  X.  Y.  be  substituted  in  the 
place  of  the  said  T.  W.  and  thereupon  the  said  X.  Y.  appeared 
in  open  Court  and  acknowledged  himself  to  be  indebted  to  the  said 

A.  B.  in  the  sum  of dollars  conditioned  for  the  payment  of  the 

debt  or  damages,  and  costs  that  have  accrued,  or  that,  may  be 
adjudged  against  the  appellant  in  this  Court;  and  it  is  further 
ordered,  that  the  recognizance  of  the  said  X.  Y.  he  certified  to 
A.  S.  the  Justice  of  the  Peace  from  whose  judg7nent  this  cause  was 
appealed,  or,  that  the  recognizance  of  the  said  X.  Y.  he  recorded  in 
this  Court,    (a) 

TlIE    LIKE,    WHERE    THE    RECOGNIZANCE  IS    INSUFFICIENT    IN  form, 

OR  amount. 


On  motion  to  the  Court,  by  Mr.  O.  counsel  for  the  appellant, 
and  it  appearing  to  the  satisfaction  of  the  Court,  that  the  recogni- 
zance for  the  appeal  of  this  cause  is  insufficient  in/o?7/i,  or,  amount 
[as  the  case  may  be]  :  It  is  thereupon  ordered  that  said  recogni- 
zance be  renewed,  and  thereupon  X.  Y.  appeared  in  open  Court 
and  acknowledged  himself  to  be  indebted,  &c.  \_Conclude  as  in 
last  precdent. 

Transcript  filed  by  appellee,  and  Judgment  in  his  favor 
IN  Common  Pleas. 

A,  B.  this  day  filed  a  transcript  of  the  proceedings  and  judg- 
ment of  A.  S.  a  Justice  of  the  Peace  of Township,  in  a  cer- 

(a)  The  recognizance  is  not  commonly  certified  to  the  Justice,  but  re- 
mains of  record  in  the  Court  of  Common  Pleas.  See,  Stat.  vol.  2d.  p.  179. 
)  52. 


430  SPECIAL  ENTRIES. 

tain  cause  wherein  the  said  A.  B.  was  plaintiff  and  C.  D.  defendant, 
and  which  cause  was  appealed  to  this  Court  by  the  said  C.  D. 
and  thereupon  on  motion  of  the  said  A.  B.  by  Mr.  O.  his  counsel, 
and  it  appearing  to  the  satisfaction  of  the  Court,  that  the  said  C. 
D.  has  failed  to  deliver  a  transcript  of  the  proceedings  and  judg* 
ment  aforesaid  to  the  Clerk  of  this  Court,  and  to  cause  his  said 
appeal  to  be  docketed,  within  the  lime  required  by  law ;  It  is  or- 
dered, that  said  cause  be  docketed  in  behalf  of  the  said  A.  B.  and 
thereupon  on  motion  of  said  A.  B.  *  it  is  considered  by  the  Court, 
that  the  said  A.  B.  recover  of  the  said  C.  D.  the  sum  of dol- 
lars (a)  together  with  his  costs  in  this  Court  expended  taxed  to 
dollars,  (b) 


Transcript  filed  by  appellee,  appeal  disbiissed  and  cause 

remanded. 


'[Proceed  as  in  the  last  precedent  to  the  *  —  It  is  ordered  that 
said  appeal  be  dismissed,  at  the  cost  of  the  said  appellant,  and  that 
said  cause  be  remanded  to  the  said  Justice  of  the  Peace  to  be  pro- 
ceeded in  as  if  said  appeal  had  not  been  taken ;  and  it  is  further 
ordered  that  the  costs  of  said  appeal  be  paid  by  said  appellant 
within days. 


(a)  The  amount  of  the  Justice's  Judgment.  Slat.  vol.  29.  p.  178.  {  45. 

[b)  If  the  appellant  fail  to  deliver  the  transcript  and  other  papers,  if 
any,  to  the  Clerk,  and  cause  his  appeal  to  be  docketed,  on  or  i)efore  the 
second  day  of  the  term  next  after  the  appeal  is  taken,  the  appellee,  at  the 
same  term,  may  file  a  transcript,  and  on  his  motion,  the  Court  will  order 
the  appeal  to  be  docketed,  and  will  either  render  final  judgment  in  his  fa- 
vor, or  dismiss  the  appeal  and  remand  the  cause  to  the  Justice  of  the 
Peace,  at  the  option  of  the  appellant.    Stat.  vol.  29.  p.  178.  {  45. 


SPECIAL  ENTRIES.  431 

Judgment   of  nonsuit    against    appellant,    andfinal    judg- 
ment pr  FAVOR  OP  APPELLANT.  Stat.  voI.  29.  p.   178.  §  46. 

This  day  came  the  "said  A.*^  B.  by  his  attorney,  and  the  said  C. 
D.  being  solemnly  called  came  not  nor  does  he  further  prosecute 
his  suit,  therefore  it  is  considered  that  the  said  A.  B.  (the  appellee) 

recover  of  the  said  CD.  the  sum  of dollars  [the  amount  of 

the  Justices  judgment  with  interest']  together  with  his  costs  in  this 
behalf  expended  taxed  to dollars. 


APPENDIX— No.  I. 


REGULA  GE^^ERALIS. 

Whereas  declarations  in  actions  upon  bills  of  exchange,  promissory 
notes,  and  the  counts,  ueiiallj''  called  the  cnmijion  counts,  occasion  unneces- 
sary expense  to  parties  by  reason  ot  their  ien<rtii,  and  the  same  may  be 
drawn  in  a  more  conr:ise  form;  now  for  the  prevention  of  such  expense, 
It  is  ordeked.  That  if  any  declaration  in  assitrnjisit  hereafter  filed  or 
delivered,  and  to  which  the  |)laintiir  shall  not  be  entitled  to  a  plea  as  of 
this  term,  being  for  any  of  the  demands  mentined  in  the  schedule  of  forms 
and  directions  annexed  l(>  this  ordor,  or  demands  of  a  like  nature,  shall 
exceed  in  length  sucii  of  the  said  forms  set  forth  or  directed  in  the  said 
schedule,  ns  may  be  applicable  to  the  case;  or,  if  any  declaration  in  -lebt 
to  be  so  filed  or  delivered  fur  similar  causes  of  action,  and  for  which  the 
action  of  assiimpsil  would  lie,  shall  exceed  such  length,  no  costs  of  the  ex- 
cess ^hall  be  allowed  to  the  plaintiff'  if  he  succeeds  in  the  cause;  and  such 
costsof  the  excess  as  have  been  incurred  by  thh  defe'idaut,  sliaU  ne  taxed 
and  allowed  to  the  defendant,  and  he  deducted  from  the  costs  allowed  to 
the  [)laintiff.  And  it  is  kurtmkr  ordeiikd.  That  on  the  tixation  of  costs, 
as  bitvveen  attorney  and  client,  nocusts  shall  be  allowed  to  the  attorney  in 
respect  of  any  such  excfss  of  length;  and  in  ca-e  any  costs  shall  be  paya- 
ble by  the  plaintiff  to  the  df^fendant  nn  account  of  such  excess,  the  amount 
thereof  shall  be  deducted  from  the  amount  of  the  attorney's  bill. 

Tenteuden.  J,   Vauciian. 

K.  C.  TiNDAL.  J.  Parke. 

I.YNDiiunsT.  W.  Holland: 

J.    BaYLEY.  J.    B,    BOSANQUET. 

J.   A.  Park.  W.  E.  'I'aj'nton. 

J.  Littleeale.  E.   H.  Alderson. 

S.  Gasulee.  J.  Patterson. 


Schedule  of  Forms  and  Directions. 

Count  on  a  pioinissniy  note  against  the  maker,  by  payee  or  indorsee,  as  the  care  may  be. 

For  that  whereas  the  defendant  on  the  day  of  ,  in 

the  year  of  our  Lord  ,  at  London  [or  in  the  county  of  ,] 


434 


made  his  promissory  note  in  writing-,  and  delivered  the  same  to  the  plain- 
tiff, and  thereby  promised  to  pay  to  the  plaintiff  £ 
C  days         ^ 

/  weeks     \      after  the  date  thereof  lor  as  the  fact  may  he],  which 

#  months     \ 

period  has  now  elapsed,  [or  if  the  note  he  payable  to  A.  B.]  and  then  and 
there  delivered  the  same  to  A.  B.,  and  thereby  promised  to  pay  to  the  said 

C  days        ^ 

A.  B.  or  order  £  <  weeks     (      after    the    date    thereof 

/  months   V 

[or  as  the  fact  may  be"],  which  period  has  now  ehpsed,  and  the  sa'.d  A.  B. 
then  and  there  indorsed  tlie  same  to  the  plaintiff,  whereof  the  defendant 
then  and  there  had  notice,  and  then  and  there,  in  consideration  of  the 
premises,  promised  to  pay  the  amount  of  the  said  note  to  the  plaintiff,  ac- 
cording to  the  tenor  and  effect  thereof. 

Count  on  a  promissory  note  against  payee  hy  an  indorsee. 

"Whereas  one  C.  D.,  on  the  day  of  in  the  year  of 

onr  Lord  ,  at  London  [or,  in  the  county  of  ],  oiade  his 

promissory  note  in  writing,  and  thereby  promised  to  pay  the  defendant,  or 

C  days         1 

order.  £,  <  weeks      \      after  the  date  thereof  [07- 

#  mcnths,    \  . 

at  the  fact  may  he'],  which  period  has  row  elapsed,  and  the  defendant  then 
and  there  indorsed  the  same  to  the  plaintiff  [or,  and  the  defei)dant  then 
and  there  indorsed  the  same  to  X.  Y.,  and  the  said  X.  Y.  then  and  there 
indorsed  the  same  to  the  plaintiff]  and  the  said  C.  D.  did  not  pay  the 
amount  thereof,  although  the  same  was  tliere  presented  to  him  on  the  day 
when  it  became  due,  of  all  which  the  defendant  then  and  there  had  due 
notice.  • 

Count  on  a  promissory  note  against  indorserby  indorsee. 

"Whereas  one  C.  D.,  on  ,  at  London,  or,  in  the  county  of 

[j  made  his  promissory  note  in  writin?.  and  thereby  promised  to  pay  to 

■  (  J^ys   ~  ^ 

Y.  Y.,  or  order,  £  <  weeks      \      after  the  date  thereof  [or 

i  months     ^ 

asthefad  may  be],  which  period  has  now  elapsed,  and  then  and  there  de- 
livered the  said  m  te  to  the  said  X.  Y.,  and  the  said  X.  Y.  then  and  there 
indorsed  the  same  to  the  defendant,  and  the  defendant  then  and  there  in- 
dorsed the  same  to  the  plaintiff  [or,  and  the  defendant  then  and  there 
indcrsed  the  same  to  Q,.  R.,  and  the  said  Q,.  R.  then  and  there  indorsed 
the  same  to  the  plaintiff];  and  tlie  said  C.  D.  did  not  psy  the  amount  there- 
of, although  the  same  was  there  presented  to  him  on  the  day  when  it  be- 
came due,  of  all  which  the  defendant  then  and  there  had  due  notice. 

Count  on   an  inland   bill   of  exchange  against  the  acceptor  by  the  drawer,  being  also 

payee. 

"Whereas  the  plaintiff  on  at  London  [or  in  the  county  of  .]  made 
his  bill  of  exchange  in  writing,  and  directed  the  same  to  the  defendant, 
and  thereby  required  the  defendant  to  pay  the  plaintiff  £ 


485 

(  days         ^  ,  ^g^^    . 

^  weeks      I     after  the      <  ^^^^'^   >     thereof,  which  period  has  now 

f  mocths     V  I  "=       ) 

elapsed;  and  the  defendant  then  and  there  accepted  the  said  bill,  and  prom- 
ised the  plaintiff  to  pay  the  same  according  to  the  tenor  ai.d  effect  tnereof 
and  of  his  said  acceptance  thereof,  but  did  not  pay  the  same  when  due. 

Count  on  an  inlaud  bill  of  exchange  again=t  the  acceptor  by  the  drawer,  not  being  the 

payee. 

Whereas  the  plaintiff  on  at  London  [or  in  the  county  of  ,]  made 
his  bill  of  exchange  in  wri'.ing,  and  directed  the  same  to  the  defendant, 
and  thereby  required  the  defendant  to  pay  to  O.  P.,  or  order,  £ 

i  days  i  ^^^^ 

J  weeks      \      after  the       ^  -.      \      thereof,  which  period  has  now 

I  months     V  C  "  °       > 

elapsed,  and  then  and  there  delivered  the  same  to  the  said  O.  P.,  and  the 
eaid  defendant  then  and  there  accepted  the  same;  and  promised  the  plain- 
tiff to  pay  the  same  according  to  the  teuor  and  effect  thereof  and  of  his 
acceptance  thereof,  yet  he  did  not  pay  the  amount  thereof,  although  the 
said  bill  was  there  presented  to  him  on  the  day  when  it  became  due;  and 
thereupon  the  same  was  then  and  there  returned  to  the  plaintiff;  of  all  which 
the  defendant  then  and  there  had  notice. 

Count  on  an  inland  bill  of  exchange  against  the  acceptor  by  ttie  indorsee. 

"Whereas  one  E.  F.,  on  at  London  [or  in  the  county  of  ,]  made 

his  bill  of  exchange  in  writing,  and  directed  the  same  to  the  defendant, 
and  thereby  required  the  defendant  to  pay  to  the  said  E.  F.  [or  to  H.  G.,] 

C  days         ^  ,    .^^     J 

or  order,  £  <  weeks      C      after   <  ^^^^   >      thereof 

f  months     \  '        ~    ) 

which  period  is  now  elapsed,  and  the  defendant  then  and  there  accepted  the 
said  bill,  and  the  said  E.  F.  [or,  the  said  H.  G.]  then  and  there  indorsed 
the  same  to  the  plaintiff  [or,  an  i  the  said  E.  F.  or,  the  said  H.  G.  then 
and  there  indorsed  the  same  to  K.  J.  and  the  said  K.  J.  then  and  there 
indorsed  the  same  to  the  plaintiff,]  of  all  which  the  defendant  then  and 
there  had  due  notice,  and  then  and  there  promised  the  plaintiff  to  pay  the 
amount  thereof,  according  to  the  tenor  and  effect  thereof  and  of  his  accep- 
tance thereof. 

Count  on  an  inland  bill  of  exchange  against  the  acceptor  by  the  payee. 

Whereas  one  E.  F.  on  at  London  [or,  in  the  county  of  ,]   made 

his  bill  of  exchange  in  writing,  and  directed  the  same  to  the  defendant, 
and  thereby  required  the  defendant  to  pay  to  the  plaintiff 

C  days         1  ^  siirhi   ) 

)  weeks      V      after  the       )  jj^     >      thereof,  which  period  has  now 

i  months     \  C  J 

elapsed;  and  the  defendant  then  and  there  accepted  the  same,  and  promised 
the  plaintiff  to  pay  the  same  according  to  the  tenor  and  effect  thereof  and 
of  his  acceptance  thereof. 


Count  on  an  inland  bill  of  exchange  agaiinst  the  drawer  by  payee  on  non-acceptance. 
Whereas  the  defendant,  on  at  London  [or,  in  the  county  of  ,] 


436 

made  his  bill  of  exchange  in  writing,  and  directed  the  same  to  J.  K.,  and 
thereby  required  the  said  J.  K.  to  pay  to  the  plaintitf  £ 

S  weeks  (      after  the       \  7^!l'  I      thereof,  and  then  and  there   de- 

f  months  \  \  ) 

livered  the  same  lo  tlu-  said  pi  nntifF,  and  the  same  was  then  and  there  pre- 
sented totiiH  snid  J.  K.  for  ;icccpiance,  and  the  sad  J.  K.  then  and  theie 
refuse'1  to  accept  the  same;  of  all  which  the  defendant  then  and  there  had 
due  notice. 

Count  on  an  inland  bill  of  exchange  against  drawer  by  indorsee  on  non-acceptance. 

Whereas  the  defendant,  on  at  London  [or,  in  the  county  of  ,] 

made  his  bill  of  exchange  in  writing,  and  directed  tiie  same  to  J.  K.,  and 
thereby  required  the  said  J.  K.  to  pay  to  the  order  of  the  said  defendant 

C  days         ^  ,  ^._^,^^  . 

jp  J  weeks      I      after  the      <  ^j^      >      thereof  and  the 

*^  I  months    \  '  J 

said  defendant  then  and  there  indorsed  the  same  to  the  plaintiff  [or,  and 
the  said  defendant  then  and  there  indorsed  the  same  to  L.  M.  and  the  said 
L.  M.  then  and  there  indorsed  the  same  to  the  plaintiff.]  and  the  same  waa 
then  and  there  presented  to  the  said  J.  K.  for  acceptance,  and  the  said  J. 
K.  then  and  there  refused  to  accept  the  same;  of  all  which  the  defendant 
then  and  there  had  due  notice. 

Count  on  an  inlaud  bill  of  exchange  against  indorserby  indorsee  on  non-acceptance. 

And  whereas  one  N.  0.,on  at  London  [or,  in  the  county  of  ,] 

made  his  bill  of  exchange  in  writing  and  directed  the  same  to  P.  Q-.  and 
thereby  required  the  said  P.  Q,.  to  pay  to  his  order  £, 

r  days  ^  C   I  1 

3  weeks      V      after  the      ^  ^jtrK,   c      thereof,  and  the  said  N.  O.  then 

i  months     \  (  "  »        S 

and  there  indorsed  the  said  bill  to  the  defendant  [or,  to  R.  S.,  and  the  said 
R.  S.  then  and  there  indorsed  the  same  to  the  defendant,]  and  the  defend- 
aui  then  and  there  indorsed  the  same  tc  the  plaintiff,  and  the  same  was 
then  and  there  presented  to  the  said  P.  Q,.  (or  acceptance,  and  the  said  P. 
Q,.  then  and  there  refused  to  accept  the  same;  of  all  which  the  defendant 
then  and  there  h..d  due  notice. 

Count  on  an  inland  bill  of  exchange  against  paj^ee  by  indorsee  on  non-acceptance. 

Whereas  one  N.  C.  on  at  London  [or,  in  the  county  of,^  ,]  made 
his  bill  of  exchange  in  writing,  and  directed  the  same  to  P.  R,,  and  there- 
by required  the  said  P.  Q,.  to  pay  to  the  defendant  or  order  jj 

r  days         ^  ,    .,      J 

3  weeks       V  '    after  the      )  ^^.'^^^    >      thereof,  and  then  and  there  de- 

i  months      \  C  > 

livered  the  same  to  the  defendant,  and  the  defendant  then  and  there  indor- 
sed the  said  bill  to  the  plaintiff  [or,  lo  R.  S.  and  the  said  R.  S.  then  and 
there  indorsed  tlie  same  to  the  plaint'ff,]  and  the  same  was  tlien  and  there 
presented  to  the  said  P.  Q,.  for  acceptance,  and  the  said  P.  Q,.  then  and 
there  refused  to  accept  the  same,  of  all  which  the  defendant  then  and  there 
had  due  notice. 


437 

Direction  for  declaiations  on  bills  where  action  brought  after  time  of  pa3'ment  expired. 
1st,  On  bills  payable  afterdate. 

If  the  declaration  be  against  any  party  to  the  bill  except  the  drawee  or 
acceptor,  and  the  bill  be  payable  at  any  time  alter  dale,  and  the  action  not 
brought  ti'l  the  time  is  expired,  it  will  be  necesaary  to  insert,  as  in  decla- 
rations on  i)romissory  notes,  immediately  after  tlie  words  denoting  the  time 
appointed  tor  payment  the  following  words  viz.  which  period  has  now  elaps- 
ed; iirid  instead  of  averring  tliat  tue  bill  was  presented  lo  the  drawee  for 
accc.plance^  and  ibat  lie  refused  to  accept  the  same,  to  allege  that  the  drawee 
[naming  him]  did  iiot pay  the  said  bill,  alt/iougk  tha  name  was  presented  to 
him  on  the  day  wJien  it  became  due. 

2ndly,  On  bills  payable  after  sight. 

And  if  the  declaration  be  ngainst  any  party  except  the  drawee  or  accep- 
tor, and  ihe  bill  be  payable  at  any  time  after  sight,  it  will  be  necessary  to 
insert  after  t  le  words  denoting  ihe  time  apjjointed  for  payment  the  follow- 
ing words;  viz.  and  the  said  </»-ai<)ec[naiiiing  him]  then  and  there  saw  and 
accepted  the  same,  and  the  said  period  has  now  elapsed;  and  instead  of  al- 
leging that  the  bill  was  presented  for  acce[)tanceand  refused,  to  allege  that 
the  drawee  [naming  him]  did  not  pay  the  said  bill,  although  the  same  was 
presented  to  him  on  the  day  when  it  became  due. 

Directions  for  decla'aiions  on  bills  or  notes  payable  at  sight. 

If  a  note  or  bdl  be  payable  at  sighl,  the  form  of  t,he  declaration  must  be 
varied  so  as  to  suit  the  case,  which  may  be  easily  done. 

On  foreign  bills. 

Declarations  on  foreign  bills  rffl^be  drawn  according  to  the  yrinciyle  of 
these  forms,  with  the  necessary  variations.' 

Common  Counts, 

Whereas  the  defendant  on  at  London  [  or,  in  the  county 

of  ],  was  indebted  to  the  plaintiff  in  £,  for  the  price 

and  value  of  goods,  then  and  there  \  ^^^""j''''^   I      and    ^  ,  ,.^°'''  ,    l      by 
"  i         sold         i  i  delivered    C  •' 

plaintiff  to  the  defendant  at  his  request: 

And  in  jFJ  f  )r  the  price  and  value  of  work  ihen  and  there 

done,  and  materials  for  the  same  provided  by  the  jjlaintiH'  for  the  defendant 
at  his  rt'quet-t; 

And  ill  £,  for  money  then  and  there  lent  by  the  plaintiff 

to  the  defendant  at  liis  request: 

And  in  j^  for  money  then  and  tiierc  paid  by  tlie  plaintiff 

for  the  use  of  the  defendant  at   his  ri'quest: 

And  in  £  for  money  then  and  there  received  by  the  de« 

fendaiit  for  the  use  of  the  plaintilf: 

And  in  J^  for  money  found  to  be  due  from  the  defendant 

to  the  plaintiff  on  an  account  then  and  there  stated  between  ihein. 

Genoial  conclusion. 

And  whereas  the  defendant  afterwards,  on,  &c.  in  consideration  of  the 


438 

premises  respectively,  then  and  there  promised  to  pay  the  said  several 
monies  respectively  to  the  plaintiff  on  request,  yet  he  hath  disregarded  hia 
promises,  and  h;ith  not  paid  any  of  the  said  monies,  or  any  part  thereof,  to 
tlie  plaintiff's  damage  of  j^  and  thereupon  he  brings  suit,  &;c. 

Directions  as  to  the  general  conclusion. 

If  the  declaration  contains  one  or  more  counts  against  the  maker  of  a 
note  or  acceptor  ot  a  bill  of  exch-mgr-,  it  will  be  proper  to  place  them  first 
in  the  declaration,  and  then  in  the  general  conclusion  to  say,  promised  to 
pay  the  said  last-mentioned  several  monies  respectively. 


APPENDIX -No.  II. 

RULES' 

OF  PRACTICE, 

IN  THE 

SEVENTH  CIRCUIT  COURT  OF  THE  UNITED  STATES; 
ADOPTED,  DECEMBER  TERM,  A.  D.  1831. 


ADMISSION  OF  ATTORNEYS,  &c. 

1.  Counsellors,  Solicitors  and  Attorneys,  of  this  and  othnr  States  or  Ter- 
ritories, who  have  b>-en  admitted  to  the  Suprfmc,  or  a  Circuit  Court  of  the 
United  Slates,  or  who  have  practiced  fortlirec  years,  in  the  highest  Court 
of  a  State  or  Territory,  shall  be  adiiiitied  to  practice  in  this  Court  upon 
producing  satisfactory  evidence  of  such  admission  and  of  good  moral  char- 
acter. 

2.  Upon  admission,  such  Counsellor,  Solicitor  or  Attorney,  shall  take  an 
oath  to  support  the  Constitution  of  the  Uniied  States,  and  of  fidelity  to  his 
Client  and  to  the  Court. 

;}.  For  mul  practice  or  other  good  cause,  this  Court,  on  motion,  may  di- 
rect the  name  of  any  Counsellor,  Solicitor,  or  Attorney,  to  be  stricken  from 
the  roll,  and  thereafter  unless  restored,  such  person  shall  be  incapable  of  ap- 
pearing in  any  cause  in  this  Court. 

PROCESS,  BAIL,  &.c. 

4.  In  a'l  actions,  against  citizens  of  this  State,  founded  upon  any  writ- 
ten instrument  for  tin-  payment  of  a  sum  of  money  certain,  and  in  all  other 
actions,  where  the  plaintiff  siiall  file  an  atlidavit,  that  a  p\im  of  money  is 
duo,  or  that  a  certain  amount  of  damages  has  been  sustained,  or  where  a 
judge,  witliout  such  affidavit,  shall  direct,  the  process  may  he  a  capias  ad 
respondendum,  upon  which,  appearance,  as  well  as  special  bail,  shall  be 
given. 

5.  Where  a  summons  has  issued,  the  Court  in  term  time,  or  a  Judge  in 
vacation  onafiidavit,  may  direct  special  bail  and  the  amount. 


440  RULES  OF  PRACTICE  IN  THE 

6.  The  amount  of  bail  required,  shall  be  endorsed  upon  the  capias, — 
Where  the  capias  shall  issue  upon  affidavit  of  damages,  or  that  a  sum  of  mon- 
ey is  due,  bail  shall  not  be  required  beyond  the  same. 

7.  A  capias  ad  respondendum  may  issue  upon  a  Judges  order,  in  term 
time,  returnable  immediately. 

8.  When  neither  appearance  nor  special  bail  is  required,  a  summons 
shall  issue. 

9.  The  capias  or  summons  (except  issuod  in  term  time)  shall  be  returna- 
ble at  some  reasonable  time  therein  to  be  specified  and  when  issued  in  term, 
it  may  be  returnable  immediately. 

10.  If  a  defendant  upon  a  capias  does  not  give  sufficient  appearance  bail, 
he  shall  be  committed  to  prison,  to  remain  until  discharged  by  due  course 
of  law.  But  underneit '.er  mense  nor  final  process,  shall  any  individual  be 
kept  imprisoned,  who,  under  the  insolvent  law  of  the  State,  has,  for  such 
demand,  been  released  from  imprisonment. 

11.  The  Marshal  shall  file  the  appearance  bail  bond,  at  the  return  of  the 
capias. 

12.  A  summons  may  be  served  by  reading,  by  delivering  a  copy  to  the  de- 
fendant, or  leaving  one  at  his  usual  place  of  abode. 

I'-i.  When  the  capias  or  summons  is  returned  served  or  executed,  the  de- 
fendant shall  be  deemed  in  Court. 

14.  The  appearance  bail  may  surrender  the  principal  in  term  time,  and 
the  defendant  shall  goat  large,  unless  prayed  into  custody  by  the  plaintiff; 
and  if  prayed  into  custody,  he  shall  stand  committed  until  discharged  by 
due  course  of  law. 

15.  Special  bail  may  in  like  manner  surrender  his  principal,  in  term  time, 
or  to  the  Marshal  before  judo-ment,  anl  if  in  term,  he  shall  go  at  large,  un- 
less the  plaintiff  shall  pray  him  into  custody:  Such  imprisoned  defendant 
m?iy,  however,  give  other  special  bail  and  be  discharged  If  prayed  into 
custody,  and  he  do  not  give  special  bail,  he  shall  remain  in  prison  until  dis- 
charged by  due  course  of  law. 

16.  A  defendant  in  prison  on  mesne  process,  shall  be  charged  with  a  ra- 
plas  ad  sa'ifijaciendum,  within  30  days  after  final  judgment  against  him,  or 
be  set  at  lilerty. 

17.  Whether  a  surrendered  defendant  shall  be  committed  or  go  at  large, 
he  shall  receive  a  declaration  as  in  ordinary  cases. 

18.  The  filing  of  a  declartion  shall,  in  no  case,  be  deemed  a  waiver  of 
bail. 

19.  A  bail  piece  may  issue,  according  to  the  usages  of  law. 

20.  Special  bail  sliall  be  filed  by  the  second  day  of  the  term,  and  may  be 
put  to  justify  according  to  the  usages  of  law. 

21  The  Marshal  may  be  amerced  to  the  amount  of  the  bail  required,  if 
he  fail  to  take  appearance  bail,  or  to  return  the  bail  bond  with  the  capias, 
or  if  he  take  insufficient  bail;  or  he  may  be  ruled  to  bring  in  the  body,  and 
failing,  may  be  reisonnblv  amerced.  He  may  always  enter  special  bail  for 
the  defendant,  and  be  saved  from  amercement.  Before  the  Marshal  shall  be 
amerced,  he  shall  hav'efive  days  j)revious  written  notice. 

22.  Upon  all  mesne  process  which  shall  be  returned  executed  or  sprved, 
sixty  days  before  the  first  day  of  the  term,  the  plaintiff  may,  immediately 
file  his  declaration  and  put  thi=  same  to  rules;  and  when  the  rules  have  been 
regularly  taken,  a  trial  m.iy  be  had  or  judginent  by  default,  be  confirmed  at 
the  first  terra,  unless  cause  be  shown. 

28.  When  process  shall  be  actually  served  (and  returned)  less  than  six- 
ty days  before  the  first  day  of  the  Court,  the  cause  shall  stand  continued  of 
course. 

24.  When  the  defendant,  being  a  citizen  of  the  state,  lurks  or  keepsout  of 


CIRCUIT  COURT.  441 

the  way  of  the  Ivlarshal,  and  has  no  usual  place  of  abode,  and  a  pluries  ca- 
pias or  summons  shall  be  so  returned,  the  court  may  direct  proclamation  to 
be  made,  three  successive  days  at  the  Court  house,  warninsf  sucli  defendant 
to  appearand  answer,  and  if  he  do  not  appear,  on  the  tiiird  mornincr,  he 
shall  bodeenir-d  in  Court;  hut  before  finn!  judirinent,  notice  of  the  pendency 
of  the  suit  «h' II  be  jriven,  four  succes.eivc  weeks,  in  some  newspaper,  pub- 
lished at  the  place  where  the  Court  sits. 

2.").  Special  bail  may  be  taken  by  the  Marshal  or  any  .Tudge  in  vacation, 
or  other  ofii'-ers  appoin'ed  by  the  Court.  Tiie  bond  shill  in  such  ca^c  be 
returned  by  the  second  day  of  the  term,  and  such  bail  shall  be  deemed  suf- 
ficient, if  not  put  to  justify. 

26.  Where  special  bail  is  required  to  justify,  and  the  Court  shall  declare 
the  same  insufficient,  the  det'eiidant  shall  immediately  j^ive  other  sufficient 
special  bail,  or  his  appearance  bail  shall  he  liable  on  his  bond,  unless  the  de- 
fendant   appear  pnd  is  prayed  into  custn^ly. 

27.  When  the  defendant  has  been  t^ken  upon  a  capias  ad  res.  and  has 
given  satisfactory  appearance  bail,  but  fiils  to  appear,  or  jjive  special  bail, 
the  plaintiJmay  proceed  to  final  judg'cment;  whicli  proceed  incr  shall  not  re- 
leas3  the  appearance  bail,  and  the  plaintifTniay  obt  lin  in  such  case,  a  judg- 
ment also  against  the  appearance  bail,  on  motion,  and  proof  of  notice,  of  such 
motion,  fifteen  days  before  the  motion  is  made. 

28.  When  s|)ecial  bail  is  given,  and  a  ca.  si.  Ins  been  returned  non  est 
inventus,  or  not  found,  judgment  may  be  rendered  against  such  special  bail, 
for  the  amount  of  the  judq-inent  recovered  and  costs,  upon  amotion  in  open 
Court,  and  the  service  of  a  written  notice  to  the  special  bail,  fifteen  daya 
before  the  commencement  of  the  Court. 

29.  The  form  of  an  appearance  hail  bond  may  in  substance  be  thus:  I  (A. 
B)  acknowledge  myself  indebted  to  (C  D)  in  the  sum  of  dollars.  The 
condition  is,  thitif  (K  V)  shall  appear  at  the  next  Circuit  Court  of  the  U- 
hited  States,  in  the  district  of  Ohio,  and  answer  to  the  suit  of  (G  H)  and 
surrender  himself  or  give  special  bail,  then  this  obligation  shall  be  void, 
otherwise  in  full  force.  l,  s. 

30.  The  form  of  a  special  bail  bond  may  in  substance  be  thus:  I  (A  B) 
acknowledge  myselfspeci.il  bail  for  (C  D)  in  the  sum  of  drdlars.  The 
condition  is,  that  if  said  (C  D)  shall  surrender  his  body  in  due  time  to  the 
Marshal  after  (E  F)  shall  obtain  a  jndg.aent  against  him  in  the  7th  Cir- 
cuit Court  of  the  I' nited  State,  in  the  District  of  Ohio,  then  this  obligation 
to  be  void,  otherwise  in  force.  l.  s. 

Taken  before  me, 

COSTS,  SECURITY  FOR,  &c. 

31.  The  Clerk  shall  require  of  all  nonresidents  of  this  District  an  endor- 
ser fi)r  costs.  The  follnwing  tbrni  upon  the  writ,  may  substantially  be  pur- 
sued: I  (/V  B)  auknowledire  myself  security  for  all  costs,  for  whicli  the 
plaintilf  maybe  liable  in  thiscuit.  i,.  s. 

32.  If  the  plaintilf  enter  a  relrnxit,  becomes  nonsuit,  dismisses  the  ac- 
tion, or  fails  on  the  trial,  and  does  net  pay  liis  costs;  judfrment  may  be  en- 
tered therefor  against  the  security,  on  motion  and  ten  days  notice  in  wri- 
ting. 

83.  The  costs  for  unnecessary  witnesses,  or  for  a  survey  which  is  unne- 
cessary, shall  be  paid  by  the  party  creating  the  costs. 

34.  Ea<h  party  may  obtain  a  copy  of  his  advcrtary's  pleadings,  in  any 
cause,  which  shall  be  taxed  in  the  bill  of  costs. 

(i  6  9 


442  RULES  OF  PRACTICE  IN  THE 

PLEADINGS,  EVIDENCE,  &c. 

35.  The  first  Monday  in  eacli  month  shall  be  a  rule  day  on  which  the  clerk 
shall  attend  in  his  office,  and  enter  rules,  wliicii  shall  expire  hy  the  next  rule 
day.     The  Court  may  grant  short  rules  in  term  time,  to  prevent  delay. 

36.  Upon  the  plea  of  non  est  factum,  to  an  instrument  under  seal,  ornon 
assumpsit  to  one  without  seal,  the  plaintiff  shall  not  be  put  to  proof  of  the 
execution  of  such  instrument,  or  of  the  hand  writing  of  the  defendant,  un- 
less such  defendant  shall  file  an  affidavit  of  tiie  truth  of  ihe  plea  and  the  like 
rule  shall  be,  when  the  action  is  brought  against  the  endorser  of  any  instru- 
ment, pleading  a  like  plea. 

37.  A  dedimus  may  issue  on  application  to  the  Clerk,  to  take  testimony 
by  either  party. 

38.  Exceptions  to  formal  matters  in  the  taking  and  return  of  depositions 
or  surveys,  shall  be  endorsed  on  them  before  the  cause  is  called  for  trial;  and 
such  exceptions,  at  the  request  of  either  party,  siiall  be  hoard  and  decided 
before  the  trial  of  the  cause. 

39.  The  the  causes  shall  be  set  down  by  the  Clerk,  assigning  a  reasona- 
ble number  to  each  day,  and  the  Clerk,  in  the  supoenas  for  witnesses,  shall 
specify  the  day  on  which  they  are  to  attend,  and  in  whose  behalf. 

EJECTMENT. 

40.  No  judgment  by  default  shall  be  taken  against  the  casual  ejector,  at 
the  first  term  of  the  Court,  after  the  commencement  of  the  action,  tinless 
the  declaration  in  ejectuient,  shall  be  served  upon  the  tenant  in  possession, 
at  least  sixty  days  previous  to  the  first  day  of  the  (^ourt. 

41.  In  every  action  of  ejectment,  the  defendant  shall  specify  in  the  consent 
rule  for  what  premises  he  intends  to  defend;  and  shall  consent  in  such  rule 
to  confess  upon  trial  that  the  defendant,  if  he  defends  as  a  tenant,  or  in  case 
he  defends  as  landlord,  that  his  tenant  was,  at  the  time  of  service  of  the  Je- 
clartion,  in  possession  of  the  premises;  and  if  upon  the  trial  the  defendant 
shall  not  confess  such  possession  as  well  as  lease  entry  and  ouster,  then  no 
costs  shall  be  allowed  for  not  prosecuting  the  suit  but  the  df'fendant  shall 
pay  full  costs  to  the  plaintiff,  which  shall  be  taxed.  In  all  cases  in  ejectment 
the  attorney  for  the  plaintiff  shall,  upon  written  application  of  the  defend- 
ant, or  his  attorney,  disclose  the  place  of  residence  of  every  lessor  of  the 
plaintiff  from  whom  a  demise  is  laid  in  the  declaration. 

42.  In  all  cases  both  at  common  law  and  in  chancery,  when  an  order  of 
survey  shall  be  necessary,  the  Clerk  may  issue  the  order,  at  the  request  of 
either  party,  the  same  lieing entered  on  the  rule  docket,  on  rule  day. 

43.  Wlien  an  order  of  survey  is  taken,  the  surveyor  shall,  ten  days  previ- 
ous to  the  Court,  return  four  fair  certified  plats. 

44.  When  itshali  be  necessary  to  take  evidence  upon  the  ground,  in  any 
survey,  the  Clerk.  .;.'  ''  p  eq  lest  of  either  party,  shall  issue  subpcenas  for 
"witnesses,  and  the  Marshal  shall  serve  the  ^ame,  and  witnesses  duly  ,"erved, 
disobeying  shall  incur  the  same  responsibilities  as  in  other  cases. 

GRAND  AND  PETIT  JURY. 

45.  Upon  suggestion  of  the  Attorney  of  the  District,  the  Clerk  shall  issue 
a  venire  facias  for  a  grand  jury,  returnable  immediately,  or  upon  a  day  fix- 
ed. 

46.  No  person  on  whom  any  process  shall  be  served,  returnable  to  this 


CIRCUIT  COURT.  443 

Court,  or  who  has  a  suit  depending  therein,  or  is  supcEnaed  as  a   witness, 
shall  be  summoned  as  a  grand  juror. 

47.  The  petit  juror  shall  be  selected  at  least  GO  days  previous  to  each 
term  of  the  Court,  from  a  hundred  nnmes  placed,  by  the  Clerk  and  Marshal, 
in  the  box,  for  that  purpose.  The  Clerk  siiall  draw  24  of  the  names  there- 
from, and  the  names  thus  drawn,  snail  immediately  be  inserted  in  the  venire, 
which  shall  be  placed  ir.  the  hands  of  the  Marshal. 

48.  The  Marshal  shall  summons  the  persons  in  'lie  venire  mentioned,  ei- 
ther personally,  or  by  written  notice,  five  days  before  the  return  day  men- 
tioned in  the  writ. 

41).  The  minutes  shall  be  entered  on  the  day  the  proceedings  in  them  men- 
tioned are  had,  and  read  the  day  after,  before  the  coaiuiencement  of  busi- 
ness. 

50.  Briefs,  written  or  printed,  shall  be  furnished  the  Court,  in  all  cases 
in  chancery  or  in  demurrer. 

51.  VV^itiiiu  a  reasonable  time  afterthe  final  determination  of  a  cause;  the 
Clerk  shall  make  a  coitiplete  record  thereof. 

52.  The  Clerk  or  any  Judge,  master  commissioner  m  chancery.  Clerk  of 
Court  or  .Justice  of  the  Peace,  resident  in  tins  District,  may  administer  any 
oath  necessary  to  carry  into  effect  these  rules. 

In  all  cas  s  in  which  the  instruction  of  the  court  to  the  jury  is  desired,  the 
counsel  shall  state  in  writing  the  points  on  which  he  may  wish  the  instruc- 
tion to  be  given. 

Ordered  by  ihe  Court,  That  the  foregoing  rules  be  the  rules  of  practice 
of  tliis  Court,  and  that  the  same  be  certified  by  the  Clerk  of  this  Court, 
and  printed. 

I,  Wir.LiAM  Miner,  Clerk  of  the  Circuit  Court  of  the  United  States, 
wjthin  and  for  the  7th  circuit  and  district  of  Ohio,  do  certifiy,  that  the  fore- 
going rules  wore  adopted  at  the  December  term  thereof,  A.  D.  1831,  as 
the  rules  of  practice  for  said  Court. 

Attest.  WILLIAM  MINER,  Clerk. 


RULES 

OF  PRACTICE  IN  BANK. 

ADOPTED  DECEMBER  TERM, 
1823. 


1.  When  a  question  shall  arise,  in  the  Supreme  Court  of  a  county,  which 
Bliall  be  reserved  for  decision  at  the  session  to  be  iiolden  by  all  the  judges, 
at  Columbus,  a  uifiiiorandum  thereof  shall  be  made  on  the  miniites,  and  an' 
entry  shall  also  be  made  that  the  suit  is  continued  for  consideration  and  de- 
cision at  Cokunbus, 

2.  In  all  cases,  thus  reserved  and  continued,  the  court  shall  direct  what 
papers  on  tile  shall  be  copied,  and  what  orig-inal  papers  shall  be  sent  to 
Columbus,  if  either  party  make  application  for  such  direction;  but  if  no 
such  application  be  made,  thr  original  papers  shall  be  sent. 

3.  At  any  time,  alter  the  first  day  of  November,  the  clerk  shall  deliver 
the  papers  of  ihe  cause,  sealed  up,  to  the  counsel  of  either  party,  who 
may  first  apply  tor  the  same;  taking  his  written  receipt  and  agreement  to 
deliver  such  papers  to  the  court,  sitting  at  Columbus. 

4.  When  judgment  is  lenden^d,  or  an  order  or  decree  made  in  a  cause, 
by  the  court,  sittmg  at  Columbus,  tlie  clerk  of  the  Supreme  Court  of  Frank- 
lin county,  shall  enter  tuch  judgment,  order,  or  decree  on  ihe  minutes,  and 
ehall  make  a  transcript  iheieof,  under  the  seal  ol  the  Supreme  Court,  which 
transcript,  with  the  papers  brought  up  in  tlie  cause,  sliali  be  delivered, 
eeaJed  up,  to  the  attorney  of  the  party,  wiio  shall  apply  lor  the  same, 
taking  his  written  receipt  and  agreeuent  to  deliver  the  whi;le  to  the  clerk 
of  the  Su[.reme  Court,  from  whence  the  suit  was  brougiit. 

5  The  personal  application  of  the  counsel,  for  papers  in  the  cause,  shall 
not  be  necessary,  if  h'"  send  his  written  order,  and  receipt,  and  agreement 
required  by   the  foregoing  rules. 

6.  The  clerk  of  the  Su-preme  Court  of  the  proper  county,  upon  receiv- 
ing back  the  transcript  and  papers,  shall  deliver  up  the  receipt  given  for 
tlie  same,  and  thall  immediately  copy  into  his  minutes  of  the  proceedings 
of  ihe  Supreme  Court,  the  transcript  aforesaid,  and  all  subsequent  pro- 
ceedings in  the  cause,  shall  be  the  same  as  if  the  judgment,  order,  or  de- 
cree had  been  entered  during  the  sitting  of  tiie  court  in  tlie  proper  county. 

7.  When  the  question  reserved  may  have  been  argued  in  the  proper 
county,  the  court  will  nevertheless  receive  written  arguments  from  either 
party,  in  all  cases  where  notice  is  given  to  the  opposite  party,  that  a  writ- 
ten argument  will  be  presented. 

8.  All  arguments  shall  be  opened  and  concluded  in  a  regular  and  proper 
©rder.     The  counsel   having  the  affirmative,  shall  furnish  to  the  opposite 


RULES  OF  PRACTICE.  445 

counsel,  a  note  of  the  points  made,  and  authorities  cited,  with  an  abstract 
of  the  argument;  after  receiving'  which,  a  like  note  of  points  and  authori- 
ties, with  an  abstract  of  tiie  argument  in  answer,  shall  be  furnished  to  the 
affirmative  counsel.  The  counsel  having  ihe  affirmative  siiall  furnish  the 
opposite  counsel  with  tiie  notes  and  abstract  aforesaid,  at  least  ten  days  be- 
fore the  sitting  of  the  court,  in  all  cases  where  the  question  shall  have 
been  reserved  twenty  days  before  the  commencement  of  the  said  session. 

9.  WJiere,  after  the  examination  of  written  arguments,  tiie  court  are  not 
satisfied,  they  will  direct  an  argument  at  bar  upon  any  particular  point. 
In  no  other  case  shall  an  argument  at  bar  be  heard. 

10.  When  any  suit,  continued  for  consideration  and  decision  at  Colum- 
bus, upon  a  question  reserved,  shall  not  be  brought  up  to  said  court  by  either 
party,  it  shall  stand  continued  to  the  next  term  of  the  Supreme  Court,  in 
the  proper  county,  and  shall  be  proceeded  in  at  such  next  term  as  other 
causes  continued  in  tiiat  term. 

11.  If  tiic  order  made  in  any  cause  by  tiie  court  at  Columbus,  be  not  final, 
but  leave  the  cause  to  be  further  proceeded  in  before  final  judgment,  it  shall 
stand  for  such  furdier  proceedings  to  be  had  at  the  next  term  in  the  proper 
county,  and  shall  be  prepared  for  trial  in  the  same  manner  with  other 
causes, 

13.  The  clerk's  and  sheriff's  fees  for  services  performed  in  attendance 
upon  the  session  of  tlie  court  at  Columbus,  shall  be  the  same  as  for  similar 
services  performed  at  tlie  sitting  of  tiie  court  in  tlie  county,  to  be  taxed  in 
the  same  manner  in  tlie  bill  of  costs,  and  shall  be  paid  on  delivery  of  the 
papers,  by  the  person  obtaining  the  same. 


RULES  OF  PRACTICE  ON  THE  CIRCUIT. 

ADOPTED  DECEMBER  TERM, 
1823. 

1.  In  all  chancery  cases  set  for  hearing,  upon  bill  and  answer,  or  upon 
bill,  answer,  replication,  and  testimony,  the  complainant's  counsel  shall 
prepnrc  a  brief,  containing  an  abstract  of  the  case,  with  the  points  and 
authorities  reiii-d  on,  to  be  presented  to  the  court  on  the  first  day  of  the 
term,  at  the  opening  thereof;  and  if  such  brief  be  not  prepared  and  presen- 
ted, the  cause  may  be  eitlier  dismissed  or  continued  at  tlie  costs  of  the 
complainant  or  liis  counsel,  as  the  court  may  direct. 

2.  In  all  cases  in  chancery  set  for  hearing,  upon  any  pica  or  demurrer, 
the  party  i)leadiiig  or  demurring  shall  prepare  or  present  the  brief;  and  if 
such  brief  be  not  prepared  and  presentod  as  aforesaid,  the  plea  or  demurrer 
may  be  ovi-rruled  at  tiie  costs  of  the  counsel  for  the  party  pleading  or  de- 
murring, and  the  cause  shall  be  finally  heard,  or  continued,  at  the  discretion 
of  the  court. 

li.  In  all  casrcs  at  law^  to  be  determined  by  the  court,  upon  writ  of  error, 
demurrer,  or  plea  of  nul  tiel  record,  tlie  counsel  for  the  party  holding  the 
afiirmative;  shall  prepare  and  present  to  the  court,  on  the  first  day  of  tko 
term, a  brief  containing  the  points  and  authorities  relied  on. 

4.  Unless  the  law  shall  otherwise  direct,  nil  depositions  may  be  opened  in 
the  clerk's  office,  by  the  clerk,  at  the  request  of  either  party,  or  hie  counsel. 


446  RULES  OF  PRACTICE. 

The  clerk  shall  endorse  upon  the  depositions,  upon  what  day  and  at  whose 
request  they  were  opened,  and  they  shall  remain  on  file  for  the  inspection 
of  either  party. 

5.  No  exceptions  to  depositions  fur  other  causes  than  the  competency 
of  the  witness,  or  the  competency  or  relevancy  of  the  testimony,  shall  be 
heard,  unless  tlie  same  be  made  in  writing:,  and  notice  thereof  given  to  the 
opposite  counsel,  before  ibe  cause  is  called  for  trial. 

6.  No  exceptions  to  depositions  which  v^ere  read  on  the  trial,  in  the 
Court  of  Common  Pleas,  for  other  causes  tban  the  competency  of  the  wit- 
ness, or  the  competency  or  relevancy  of  the  testimony,  shall  be  heard  in 
this  court,  unless  the  same  was  made  on  trial  in  that  court,  and  noted  in 
writing. 

7.  When  depositions  are  in  court  prior  to  the  continuance  of  a  cause,  no 
exceptions  shall  be  laken  to  such  depositions,  unless  the  same  be  filed  with 
the  depositions  in  the  clerk's  office,  or  notice  thereof  in  writing  given  to  the 
adverse  party  or  his  counsel,  within  six  months  from  such  continuance,  ex- 
cept for  incompetency  or  irrelevancy. 

8.  A  notice  to  take  depositions  on  a  day  in  term  time,  shall  not  be  consid- 
ered a  reasonable  notice. 

9.  In  all  cases,  in  which  both  parties  have  attended,  and  examined 
and  cross-examined  a  witness,  they  shall  be  considered  as  having  a  joint 
interest  to  the  deposition,  and  either  party  shall  be  at  liberty  to  use  it  on 
trial. 

10.  In  the  trial  of  causes,  but  one  counsel  on  each  side  shall  be  permit- 
ted to  examine  a  witness;  and  no  witness,  once  dismissed  from  the  stand, 
shall  again  be  called,  until  the  other  testimony  is  gone  through,  except  at 
the  request  of  a  juror,  or  by  the  order  of  the  court. 

11.  When  application  is  made  to  the  court,  or  a  judge,  in  vacation,  for 
the  allowance  of  a  writ  of  error,  the  parly  applying  shall  present  to  the 
court  or  judge  a  certified  copy  of  the  record,  and  an  assignment  of  errors, 
which  copy  and  assignment  shall  be  returned  to  the  court  with  the  writ  of 
error. 


RULE  IN  BANK, 

ADOPTED  DECEMBER  TERM, 

1826. 

It  is  ordered.  That  in  all  cases  reserved  for  consideration  and  decision  at 
the  special  session  more  than  thirty  days  before  the  first  day  of  the  session, 
it  shall  be  the  duty  of  the  party  holding  the  affirmative,  to  cause  the  record, 
exhibits,  and  depositions,  if  any,  and  a  transcript  of  the  points  relied  on,  to 
be  filed  with  the  clerk  at  Columbus,  on  the  day  preceding  the  first  day  of 
the  session,  on  the  penalty  of  the  payment  of  all  the  costs  that  may  have  ac- 
cured  from  the  commencement  of  the  suit. 


RULES  OF  PRACTICE.  447 

RULE  IN  BANK, 

ADOPTED  DECEMBER  TERM, 

1831. 

That  in  all  cas5s  where  oral  arg'umonts  are  hoard  in  this  court,  the  coun- 
sel holdinor  the  aiirmative,  shall,  before  the  arijuments  are  commenced, 
furnish  each  of  the  judges  vvitli  an  ahstraot  of  the  case,  and  a  brief  of  the 
points  and  authorities  relied  upon,  printed  or  written  in  a  legible  hand;  and 
the  opposing  counsel  shall  furnish  like  briefs  of  the  points  and  authorities 
relied  upon  on  the  negative. 


RULES 

INBANK,  ON  THE  CIRCUIT,  AND  FOR  THE  COMMON  PLEAS, 

ADOPTED  DECEMBER  TERM, 

1831. 

1.  Ordered,  That  when  application  is  made  for  admission  to  the  bar, 
the  applicant  shall  furnish  the  court  with  the  certilicate  of  his  moral  char- 
acter and  legal  qualifications;  and  witli  written  evidence  that  the  person 
applying  is  twenty-one  years  of  age,  and  a  citizen  of  the  United  States. 

2.  That  no  attorney  or  counsellor  of  this  court,  or  any  clerk  of  the 
court,  or  sheriff,  shall  hn  received  as  bail  or  security   in  any  cause  in  court. 

3-  That  hereaftf^r  the  clerks  of  the  Courts  of  Common  Pleas  and  of  the 
Supreme  Court,  shall,  in  their  cost  books,  minute  in  separate  columns,  the 
costs  occasioned  by  each  party  to  the  suit. 

4.  No  papers  or  records  filed  in  court,  or  in  the  clerk's  office,  shall  be  ta- 
ken tlierefrom,  unless  by  leave  of  the  court,  and  each  party  may  have  a 
copy  of  his  adversary's  pleading,  the  expense  of  which  may  be  taxed  in  the 
bill  of  costs. 

5.  No  deposition  taken  in  a  chancery  suit  shall  be  read  at  the  hearing, 
unless  taken  at  least  ten  days  bef<ire  the  commencement  of  the  term,  or  by 
consent,  except  those  directed  to  be  taken  by  the  court. 

G.  In  all  cuses  reserved  for  decision  at  the  Court  in  Bmk,  the  counsel 
holding  the  atHrmative  in  the  matter  to  be  heard,  shall,  before  the  cause  is 
called  on,  furnish  each  nuuiber  of  the  court  with  an  abstract  of  the  case, 
containing  the  substance  of  the  pleadings,  facts,  and  documents,  on  which 
the  parties  rely,  and  the  points  of  la^v  and  facts  intended  to  be  presented  in 
the  argument;  which  abstract  shall  be  legibly  written  or  printed. 

9.  In  all  cases  where  any  person  is  adniiited  to  defend  in  ejectment,  in 
place  of  the  casual  ejector,  he  shall  be  required  to  confess  the  lease,  entry, 
and  ouster,  to  admit  himself  in  possession  of  so  much  of  the  premises  as 
he  defends  for,  defining  the  extent  and  boundaries  of  that  possession,  and  to 
plead  not  guilty,  all  which  shall  be  reduced  to  writing  and  signed  by  coun- 
Bcl,  whorcui)on  the  issue  shall  be  considered  as  made  up,  without  any 
change  of  the  declaration. 

8.  Where  counsel  claim  tho  privilege  of  making  oral  arguments,  in  any 
cause  in  IJank,  they  shall  file  with  the  papers  in  the  cause,  notice  of  such 
intention,  orthe  cause  will  be  considered  as  submitted  upon  written  argu- 
ments. 

9.  The  last  clause  of  the  ninth  rule,  heretofore  published,  is  rescinded. 


448  RULES  OF  PRACTICE. 

RULES  OF  PRACTICE  IN  THE  FIRST  CIRCUIT. 

Rules  of  practice  in  suits  at  law. 

1.  The  first  Monday  in  every  month  sliall  be  a  rule  day. 

2.  The  plaintiff  shall  file  his  declaration  on  the  2d.  rule  day  after  the 
summons  isreturned  served,  or  after  entering  special  bail  and  perfecting 
the  same,  or  the  defendant  beinij  returned  in  custody,  or  the  entering  of  a 
committitur  or  wavier  of  bail:  Provided  nevertheless,  thnt  the  plaintiff" 
may,  if  desirous  to  expedite  tbe  progress  of  his  suit  file  his  declaration  on 
the  first  rulediy  after  an  appearance  is  effected  by  the  defendant. 

3.  The  defendant  shall  file  his  j51ea  on  the  rule  day  next  after  the  filing 
of  the  declaration;  and  if  further  pU^adings  be  necessary,  they  shall  be 
filed  on  the  rule  days  next  each  after  the  olher. 

4.  The  Clerk  shall  endorse  on  each  pleading  in  a  cause,  the  time  of  filinnf 
the  same,  and  if  the  plaintiff  shall  make  default  in  declaring,  or  if  the 
Plaintiffor  Defendant  whichever  may  be  the  party,  shall  make  default  in  not 
answering,    t\\^  Clerk  shall  enter  such  default  in  the  l{ule  Book. 

5.  On  the  default  being  duly  entered  the  party  entitled  to  take  advan- 
tagethereuf  shall  not  be  held  afterwards  to  accept  a  declaratiom  or  answer 
as  the  defiiult  shall  happen  to  be,  and  may  at  any  time  during  the  next 
term  after  such  default  is  entered,  move  the  Court  for  such  judgment  as  is 
to  be  rendered  by  law  by  reason  of  the  default.  Provided,  nevertheless, 
that  the  Court  in  term,  or  a  Judge  in  vacat'on,  may  ou  application  of  the 
Plaintiff  who  is  bound  to  declare,  or  tlie  Plaintiffor  Defendant  who  is  bound 
to  answer,  at  any  time  before  the  defauH  is  entered  make  such  order  for  en- 
larging the  time  to  declare  or  to  answer  as  shall  be  juilged  reasonable  in 
the  cause. 

6.  Every  application  for  further  time  to  declare  or  answer  made  to  a 
Judge  in  vacation  shall  be  in  writing  signed  by  the  attorney  of  the  party 
and  shall  set  forth  the  reasons  on  which  it  is  founded;  and  the  application 
together  with  the  Judges  allowance  thereon  shall  be  filed  in  the  Clerks 
oftice  on  or  before  the  day  on  which,  the  party  would  regularly  have  been 
bound  to  plead,  and  the  Clerk  shall  make  an  entry  in  the  rule  book  of  such 
enlarged  time. 

7.  A  default  incurred  by  the  Plaintiff  for  not  declareing  or  answering 
may  be  set  aside  at  th<'  next  term  of  the  Court  on  filing  in  the  Clerks  oflace 
a  declaration  or  answer  as  the  case  may  be,  at  least  twelve  days  befjre  the 
term,  and  filing  all  further  pleadings  necessary  on  his  part  to  make  up  the 
issue  so  thatthd  cause  may  be  tried  at  the  next  term  if  required  by  The  de- 
fendant; and  the  costs  of  filing  and  copying  such  declaration  or  answer  and 
all  further  pleadings  on  the  part  of  the  plaintiff  shall  be  taxed  as^ainst  and 
paid  by  the  plaintiff.  The  defendant  shall  not  be  intitled  to  insist  on  a 
trial  at  the  next  term  unless  the  pleadings  necessary  on  his  part  to  make 
.up  the  issue  are  filed  by  the  first  day  of  the  term. 

8.  A  defauU  entered  against  the  defendant  for  not  pleading  within  the 
rule  may  be  set  aside  at  the  next  term,  on  motion  and  on  payment  of  costs 
which  have  accrued  in  consequence  of  such  default,  filing  an  affidavit  of 
merits,  pleading  issuably  and  rejoining  gratis,  so  that  the  cause  may  be 
tried  at  the  term  ifthe  Plaintiff  require  a  trial.  The  motion  by  defendant 
to  set  aside  the  default  shall  be  made  on  the  first  day  the  term. 

9.  If  the  plaintiff  amend  his  declaration,  the  defendant  shall  have  until 
the  next  rule  day  to  alter  his  plea  or  plead  anew;  and  if  the  defendant 
amend  his  plea,  the  plaintiff  shall  liave  until  the  next  rule  day  to  amend  hi* 


RULES  OF  PRACTICE.  449 

replication  or  reply  anew;  and  tlie  like  time  sliall  be  allowed  if  any  of  the 
subsequent  pleadings  be  amended.  But  all  amendments  shall  be  made 
upon  tuch  equitable  terms  as  tiie  Couit  shall  direct. 

10.  No  private  agreement  or  consent  between  the  parties  in  respect  to 
the  proceedings  in  a  cause  shall  be  alledged  or  sugge-^ted  by  either  of  tlieni 
against  the  other,  unle?sthe  same  sliall  have  been  reduced  to  the  form  of  a 
rule  by  consent,  and  entered  in  the  inirmtas,  or  unless  the  evidence  thereof 
shall  be  in  writing,  subscribed  by  the  party  against  whom  it  shall  be  al- 
ledged or  suggested. 

11.  In  any  motion  for  a  new  trial,  the  party  making  the  motion  shall  file 
his  reasons  on  the  day  on  wliich  the  verdict  is  rendered  or  on  liie  day  after. 

12.  Depositions  may  be  opened  in  tlie  Clerk's  office  at  the  request  ofeither 
party,  or  his  counsel,  the  Clerk  endorsing  thereon  the  day  and  at  whose  re- 
quest they  were  opened,  and  they  shall  remain  on  file  for  the  inspection  of 
either  party. 

13.  JNo  exceptions  to  depositions  for  other  causes  than  the  competency 
of  the  witnesses  or  the  competency  or  relevancy  of  tlie  testimony  shall  be 
heard  unless  the  same  be  in  writing  and  notice  thereof  be  given  to  the  op- 
posite counsel  before  the  cause  is  called  fortri:il. 

14.  Where  depositions  were  in  Court  prior  to  t  lie  continuation  of  a  cnuse 
no  exceptions  shall  be  taken  thereto  unless  the  same  be  filed  in  the  Clerks 
office  on  or  before  the  second  rule  day  after  the  contiiiuance,  except  for  in- 
competancy  or  irrevelancy. 

If).  A  motion  to  take  depositions  on  a  day  in  term  shall  not  be  consid- 
ered a  legal  notice. 

16.  In  all  cases  in  which  the  parties  have  attended  and  examined  and 
cross-examined  a  witness,  they  shall  be  considered  as  liaving  ajoint  inter- 
est in  the  dei)osition  and  cither  party  may  use  it  on  the  trial. 
»  17,  In  the  trial  of  causes  but  one  counsel  on  each  side  shall  be  permitted 
to  examine  a  witness;  and  no  witness  once  dismisse.l  from  the  stand  shall 
again  be  called  until  the  other  testimony  is  gone  through,  except  at  the  re- 
quest of  a  .lurror,  or  by  order  of  the  Court. 

18.  To  every  petiti(m  by  an  Executor  or  Administrator  for  authority  to 
sell  the  lands  ot  the  testator  or  intestate,  a  schedule  shall  be  annexed  exhib- 
iting the  true  situation  of  the  estate,  the  amount  of  assets  received  and  un- 
collected, and  the  claims  and  debts  against  the  estate  separately  and  dis- 
tinctly stated. 

19.  Every  application  by  an  Executor  or  Acministrator  to  extend  the 
time  allowed  by  law  for  the  settlement  of  his  accounts  shall  be  in  writing 
and  shall  set  fiirtli  the  time  situation  of  the  estate,  the  moneys  received  ;ind 
remaining  due,  and  also  the  debts  and  demands  against  the  estate  by  him 
paid  or  remaining  unsatisfied;  which  application  siiall  be  filed  in  the  Clerk's 
office. 

20.  Before  any  guardian  shall  be  authorized  to  sell  tlie  real  estate  of  hia 
ward,  an  account  shall  l)c  taken  and  settlement  made  ofthe  personal  estate, 
and  the  Court  may  require  him  to  give  bond  with  siilliciont  sureties  in  dou- 
ble the  appraised  value  ofthe  land  he  m.iy  be  authorized  to  sell. 

21.  No  atgumentshall  be  heard  in  support  of  a  motion  founded  upon 
affidavit  for  a  continuance  of  a  cause,  and  but  one  on  the  other  side. 

22.  Not  more  than  two  counsel  shall  be  permitted  to  argue  any  cause  to 
the  Jury,  except  indictments  lur  murder  in  t!ic  first  degree,  ai:d  in  such  cases 
not  more  than  three. 

II  II  11 


450  RULES  OF  PRACTICE. 

RULES  TO  GOVERN  PROCEEDINGS  IN  CHANCERY. 

1.  No  motion  to  dissnlvR  nn  injunction  which  has  been  repularly  ob- 
tained, shall  be  heard  until  three  days  after  the  answer  is  filed,  if  the  party 
rely  in  any  manner  on  his  answer  lor  the  dissolution. 

2.  The  master  commissioner  in  chancery,  magistrate  or  other  officer 
who  shall  take  depositions  in  a  cause  depending  in  chancery,  shall  return 
the  depositions  with  the  dedimiis  or  notice  scaled  up  and  directed  to  the 
Cleik,  or  shall  transinitthem  by  some  person  who  shall  swearthat  they  were 
not  opened  or  altered  since  they  were  delivered  to  him;  and  such  deposi- 
tions shall  be  filed  by  the  Cleik  in  his  office. 

3.  No  deposition  shall  be  taken  until  the  cause  is  at  issue,  or  the  defen- 
dant is  in  default  ibr  not  pleading  or  answering,  in  which  case  the  com- 
plainant may  take  depositions  to  substantiate  and  prove  the  allegations  of 
his  bill. 

4.  All  depositions  taken  by  either  party  in  a  cause  shall  be  filed  in  the 
Clerk's  office  at  least  ten  days  prior  to  the  term  in  wLich  the  cause  is  set 
down  for  healing.  The  Clerk  shall  open  the  depositions  at  the  request  of 
either  party  and  endorse  on  them  on  what  day  and  at  whose  request  they 
were  opened;  and  they  shall  remain  on  file  lor  the  inspection  of  either 
party. 

5.  No  depositions  shall  be  taken  by  either  party  after  the  time  limited 
for  filing  depositions  by  the  fourth  rule,  unless  by  leave  of  the  Court  or  a 
Judge  thereof  in  vacation.  Every  application  to  a  Judge  in  vacation  to  ex- 
tend the  time  of  taking  depositions  shall  be  in  writing,  signed  by  the  attor- 
ney ot  the  party,  and  shall  set  forth  the  reasons  on  which  it  is  founded.  And 
the  application  with  the  Judges  itllowance  thereon  shall  be  filed  in  the 
Clerks  office  on  or  before  the  day  limited  for  the  filing  of  depositions. 

6.  The  13,  14,  15  and  16  rules  of  practice  in  suits  at  law  and  adopted 
in  proceedings  in  chancery. 

7.  The  complainant  may  amend  his  bill  at  any  time  before  plea,  an- 
swer, or  demurrer  filed,  of  course  and  without  payment  of  costs,  but  ifthe 
defendant  hath  appeared  and  procured  a  copy  of  the  bill,  tlie  complainant 
shall  furnish  him  with  a  certified  copy  of  the  amended  hill  gratis.  But  no 
amendment  shall  be  allowed  as  of  course  under  this  rule  to  a  bill  which  has 
been  sworn  to  by  the  party. 

8.  Unless  the  parties  agree  upon  a  case  to  be  signed  by  them  respective- 
ly, and  containing  with  all  requisite  brevity  a  statement  ofthe  pleadings  and 
proofs;  a  case  containing  an  abbereviation  ofthe  pleadings  and  no  more,  shall 
be  furnished  by  the  complainanis  counsel  when  the  cause  is  set  down  for 
hearing  upon  bill  and  answer,  or  upon  bill,  answer,  replication  and  testimo- 
ny; or  in  c;ises  not  for  hearing  upon  any  plea  or  demurrer,  by  the  party 
pleading  or  demurring;  and  shall  be  delivered  to  the  Court  when  tho  cause 
is  brought  to  a  hearing,  each  party  at  the  same  time  furnishing  the  points 
upon  which  he  may  think  proper  to  rely.  And  if  a  cause  be  submitted  to 
the  Court  without  aigument  upon  the  points  merely,  and  no  issue  agreed  on 
the  abbreviated  case  shall  be  furnished  by  the  complainant  when  the  cause 
standsupon  bill  and  answer,  or  upon  bill,  answer,  replicationand  testimony; 
or  by  the  party  pleading  or  demurring  in  cases  set  for  hearing  upon  plea  or 
demurrer. 


RULES  OF  PRACTICE.  461 


RULES  OF  PRACTICE  IN  THE  SECOND  CIRCUIT. 

ORDER  OF  THE  DOCKET. 

1.  Law  causes,  both  civil  and  criminal,  shall  be  first  set  down  on  the 
Docket,  in  the  order  designated  by  the  Statute.  'I'hey  shall  be  assij^ned, 
by  the  Clork,  to  as  many  successive  days,  during  term,  as  may,  in  his 
opinion,  be  necessary  for  their  trial.  Subsequently  shall  be  set,  in  their 
proper  order,  on  the  Docket,  all  causes  in  Crianccry,  petitions,  citations, 
and  other  matters  proper  to  be  placed  on  the  Docket. 

2.  As  soon  after  tlie  opening  of  the  Court,  as  may  be  practicable,  the 
law  docket  will  be  called,  defaults  and  continuances  taken,  and  causes 
noted  for  trial  ;  the  law  docket  will  then  be  taken  up  and  each  cause  dis- 
posed of  in  the  order  in  which  it  shall  stand.  The  Chancery  docket  shall 
be  disposed  of  in  like  manner. 

3.  By  the  consent  of  the  counsel  of  both  parties,  a  cause  when  cal- 
led may  be  passed  ;  but  in  such  case,  the  successive  causes  upon  the  docket 
will  be  called,  and  a  cause  thus  passed,  will  not  be  again  taken  up,  until 
its  regular  turn,  upon  a  recalling  of  the  docket. 

4.  Trials  for  capital  or  penitentiary  offences;  and  for  other  offences, 
when  the  defendant  may  be  in  custody,  will  if  the  occasion  require,  be  ta- 
ken up  out  of  the  regular  order  in  wiiich  the  causes  may  stand  upon  the 
docket. 

SECURITY  FOR  COSTS. 

5.,  If  the  defendant  be  entitled  to  costs,  at  the  commencement  of  the 
action,  the  plaintiff,  on  motion  of  defendant,  at  the  appearance  term,  shall 
put  in  security  for  costs  by  a  day  in  term,  or  non-suit. 

6.  If  defendant's  right  for  security  for  costs  shall  have  accrued,  sub- 
sequently to  the  commencement  of  the  action,  or  if  the  application  be 
made  at  a  subsequent  term,  and  a  trial  be  required,  pluntiff  shall  put  in 
security  for  costs  before  trial;  if  the  cause  shiiil  be  continued  security  for 
costs  shall  be  given  in  thirty  days,  or  non-suit. 

FILING  PLEADINGS. 

7.  Df,clarations  shall  be  filed  in  thirty  days  after  appearance  term  ; 
pleas  in  thirty  days  thereafter,  and  every  tenth  day  thereafter,  shall  be  a 
rule  day,  until  issue  shall  be  joined. 

8.  Plaintiff,  in  default,  shall  file  declaration,  by  a  day  in  term  ;  or 
otherwise,  upon  cause  shown,  may  obtain  a  continuance,  in  which  case  he 
may  be  required  to  show  cause  of  action,  by  aliidavit  or  otherwise,  or  non- 
suit. 

9.  Defbndant,  in  default  for  want  of  plea,  sliall,  if  required  by  plain- 
tiff, shuw  by  ajlidavit  or  otherwise,  that  he   lias  a  meritorious  defence  ;  he 

shall  then  plead  issuably  and  proceed  to  trial,  or  show  cause  for  a  continu- 
ance. 

10.  If  a  cause,  in  which  either  party  in  default,  be  continued,  the  de- 
fault shall  be  considered  waived,  and  issue  shall  be  made  up  at  rules,  du- 
ring the  subsequent  vacation,  as  in  other  cases. 

11.  If  the  defendant  is  in  actual  custody  on  mesne  process,  plaintiff 
may  be  ruled  to  declare  against  him  by  a  day  in  term,  or  non-suit. 


452  RULES  OF  PRACTICE. 


CONTINUANCES. 

12.  The  facts,  upon  which  motions  for  continuances,  both  in  civil  and 
criminal  cases,  sliall  be  founded,  shall  be  verified  by  affidavit,  or  by  the 
professional  statement  of  counsel  in  writing,  unless  tiiey  appear  of  record, 
and  sucli  motions  shall  be  submitted  without  argument. 

13.  Upon  a  second  application,  by  the  same  party,  for  a  continuance, 
on  account  of  the  absence  of  a  materi  il  witness,  tiie  affidavit  shall  ^et 
forth  substantially  the  ficts  that  the  party  expects  to  prove  by  the  witness, 
on  account  of  whose  absence  the  continuance  is  sought. 

14.  On  motion  to  coalinue,  the  affidavit  or  professional  statement  shall 
be  taken  as  the  ground  upon  which  the  motion  is  founded  ;  and  no  contra- 
dictory, supplemental  or  amended  affidavit  will  be  heard. 

BILL  OF  PARTICULARS. 

15.  If  a  bill  of  particulars  be  demanded,  the  party  demanding,  shall 
have  as  many  days  to  file  his  pleadings,  after  such  bill  of  particulars  shall 
have  been  furnished,  as  would  occur  from  the  day  of  such  demand,  to  the 
expiration  of  the  rule  to  plead. 

CERTIORARI. 

16.  Application  for  certiorari,  for  error,  shall  be  founded  upon  a  trans- 
cript of  the  proceedings,  in  which  the  error  is  alleged  to  have  intervened, 
to  which  shall  be  annexed  an  assignment  of  errors. 

17.  Application  for  certiorari,  upon  suggestion  of  diminution  of  re- 
cord, shall  be  accompanied  by  the  transcript,  upon  v/hich  diminution  is 
suggested,  and  an  affidavit  or  professional  statement  of  counsel,  setting 
forth  substantially  the  diminution  complained  of. 

18.  Upon  filing  the  transcript  and  assignment  of  errors,  defendant  shall 
join  in  error  instanter  and  the  errors  may  be  tried  at  the  term  at  which  the 
certiorari  is  returned. 

DEMURRER. 

19.  No  rule  to  join  in  demurrer  shall  be  necessary,  but  on  demurrer 
being  put  in,  the  opposite  party  shall  join  instanter. 

EJECTMENT 

20.  When,  in  actions  of  ejectment,  any  person  is  to  be  made  defendant, 
in  place  of  the  casual  ejector,  the  consent  rule  shall  be  drawn  up  and  filed 
by  such  nrw  defendant,  together  with  the  plea  of  general  issue. 

The  consent  rule  shall  confess  lease  entry  and  ouster,  and  that  defend- 
ant is  in  possession  of  the  premises,  or  of  such  part  as  he  defends  for,  and 
in  case  he  does  not  defend  for  the  whole,  shall  contain  a  description  of  the 
part  for  which  he  does  defend. 

21.  It  shall  not  be  necessary  for  the  plaintiff  to  file  a  new  declaration 
in  ejectment,  but  the  name  of  the  casual  ejector  may  be  erased,  and  that 
of  the  new  defendant  inserted,  at  any  time  previous  to  final  judgment. 

22.  The  plaintiff,  upon  being  served  with  notice  for  that  purpose,  shall 
furnish  to  defendant  a  written  specification  of  the  lands  for  which  he  in- 
tends to  proceed. 


RULES  OF  PRACTICE  453 

23.  Either  party  may  obtain  an  order  for  a  survey,  and  in  such  case, 
the  surveyor  shall  return  tliree  protractrJ,  showing  the  lines  and  boundaries, 
as  claimed  be  each  party,  plainly  delineated. 

DEPOSITIONS. 

24.  Depositions  sliall  be  filed  on  or  before  the  first  day  of  the  term, 
next  afier  taking  thereof,  if  within  the  power  of  the  party;  otherwise  they 
BbaJl  not,  except  by  consent,   be  used  as  testimony, 

25.  Depositions  may,  at  any  time  after  being  filed,  be  opened  at  the 
Clerk's  ofiice,  by  the  ClerK,  at  the  request  of  either  party,  or  his  counsel  ; 
the  Clerk  shall  endorse  tiia  time  of  opening,  and  at  whose  request  it  was 
done,  and  the  deposition  shall  then  remain  on  file,  subject  to  the  inspection 
of  either  party. 

26.  No  exception  to  depositions,  except  for  incompetence  or  irrelevance, 
shall  be  heard,  unless  the  same  be  made  in  writing,  and  annexed  to  the  de- 
position, before  the  jury  shall   bo  sworn,  or  the  csuse  called  on  for  hearing. 

27.  If  a  cause  sliall  hf  continued,  after  viepositions  filed  therein,  ex- 
ceptions, as  last  aforesaid,  shall  be  taken  within  thirty  days  after  such  con- 
tinuance. 

28.  Notice  to  take  depositions  on  a  day  in  term  is  not  reasonable  no- 
tice. 

29.  If  both  parties  shall  have  attended  and  examined  a  witness,  either 
party  may  use  the  depositions  on  trial. 

MOTIONS. 

30.  All  special  motions,  applications  for  license,  for  letters  of  admin- 
istration, guardianship,  ^c.  shali  be  made  in  writing,  filed  with  the  Clerk, 
and  the  testimony  for,  or  against  any  motion,  it  not  of  record,  or  file, 
shall  be  reduced  to  writing,  and  filed. 

31.  MoTiOiNs  to  dismiss  suits  for  irregularity  in  mesne  process,  or  ap- 
peal, shall  be  made  during  the  term  at  which  the  process  or  appeal  shall 
be  filed  and  entered. 

32.  Notice  of  motions  for  new  taial,  or  in  arrest,  with  the  reasons, 
shall  be  given  within  twelve  hours  after  verdict. 

PROOF  OF  NOTICE. 

33.  Proof  of  publication,  and  of  service  of  notice,  shall  in  all  cases 
be  made  by  affidavit,  with  a  copy  of  the  notice  attached,  and  filed  with  the 
Clerk. 

AMENDMENTS. 

34.  Amendment.s  at  law,  shall  be  allowed  only  upon  the  terms  of  pay- 
ing all  costs  which  shall  have  accrued  alter  filing  the  defective  ideudiiig. 

35.  Sun.sKciuENT  pleadings  may  be  filed  anew,  after  ameiulment,  but  if 
that  be  not  done  within  ihe  rules,  the  parties  sliall  be  considered  as  abiding 
by  their  former  pleadings. 

3t).  In  no  case,  when  pleadings  arc  amended,  shall  the  original  plead- 
ings be  withdrawn  from  the  files,  nor  any  part  be  obliterated,  so  aa  to  ren- 
der the  same  illegible. 


454  RULES  OF  PRACTICE. 


ISSUE,  TRIALS,  &c. 

37.  All  causes,  intended  for  trial,  shall  be  put  at  issue,  at  or  before 
issue  day,  (viz)  the  tweltth  day  before  term. 

38.  But  one  counsel  upon  eacli  side  shall  examine  a  witness,  on  atrial 
of  a  cause,  and  a  witness  once  dismissed,  shall  not  again  be  called  to  tes- 
tify, until  the  other  testimony,  for  tlie  same  party  is  fully  detailed,  except 
by  order  of  the  Court. 

39  On  the  argument  of  interlocutory  questions,  but  one  counsel  on 
each  side  shall  be  heard.  And  but  two  on  each  side  will  be  heard  in  argu- 
ment to  the  Court  or  jury  upon  trial. 

40.  Briefs,  containing  an  abstract  of  the  facts,  or  a  statement  of  the 
points,  together  with  the  authorities  relied  on,  sball  be  presented  to  the 
court,  on  or  before  the  second  day  of  the  term,  at  which  a  hearing  or 
argument  is  intended,  in  the  following  cases,  viz  : — 

On   demurrer  at  law  or  in  equity,  by  the  party  demurring. 

Oil  plea  in  equity,  and  at  law,  when  triable  by  the  court — by  the  defen- 
dant— on  certiorari,  by  plaintifi'  in  error — and  on  hearing  in  Chancery,  by 
plaintiff. 

41.  On  interlocutory  questions,  the  party  moving  the  court,  or  objec- 
ting to  te.-ftimony,  shall  be  first  heard  ;  the  respondent  may  then  reply  by 
one  counsel,  and  the  mover  rejoin,  confining  his  final  remarks  to  the  points 
first  stated,  and  to  a  pertinent  answer  to  the  respondent's  argument.  De- 
bate on  the  question  shall  then  be  closed,  unless  the  court  request  further 
argument. 

4'2.  Upon  trials,  the  party  holding  the  affirmative  shall  take  precedence 
in  proceeding.  In  such  case,  the  precedent  party  shall  make  the  opening 
argument;  the  respondent  may  then  be  heard  by  two  counsel  in  reply,  and 
the  first  party  make  the  concluding  argument. 

43.  If  on  ary  question,  when  the  precedent  party  shall  have  closed  the 
opening  argument,  the  responding  party  shall  decline  a  reply  ;  the  prece- 
dent party  shall  not  again  be  heard  in  argument. 

ADMINISTRATORS  AND  EXECUTORS. 

44.  When  any  administrator  or  executor  shall  file  his  vouchers  for 
final  settlement  of  the  estate,  whereof  he  has  been  administrator,  he  shall 
file  therewith  an  account  current,  drawn  in  a  fair  hand,  in  which,  after 
debiting  himself  wiih  all  assets  that  may  have  came  to  his  Lands;  there 
Bhall  be  stated  on  the  credit  side  of  the  account, — First,  all  costs  of  ad- 
ministration; last  sickness,  and  funeral  expenses,  amount  set  off  for  a  years' 
support  of  family,  and  such  debts  due  the  estate,  as,  having  been  charged 
to  the  administrator,  are  capable  of  being  collected, — Second,  all  payments 
made  upon  mortgages,  or  judgments,  that  operated  as  a  lien  on  the  estate 
of  the  decedent, — And,  lastly,  payments  made  upon  every  other  account 
to  the  creditors  of  the  estate.  And  each  of  the  above  classes  of  items 
shall  form  a  separate  aggregate,  and  the  vouchers,  in  support  of  each  item, 
shall  be  numbered  and  referred  to  corresponding  numbers  on  the  account 
current. 

45.  Each  claim,  upon  account,  purporting  to  have  accrued  before  the 
death  of  the  decedent,  shall  be  accompanied  by  proof,  evidencing  the  just- 
ness of  the  claim,  and  that  the  amount  demanded  is  due.  And  if  the  claim 
be  upon  an   account,  the  last  item  of  which  shall  appear  to  have  been  of 


RULES  OF  PRACTICE.  455 

more  than  eighteen  months  standing,  previously  to  the  death  of  the  dece- 
dent, the  affidavit  of  tlie  party  shall  not  be  considered  suffiQient  evidence  to 
substantiate  such  claim. 

40.  Wherever  any  estate  shall  be  considered  insolvent,  the  executor 
or  adminislrator  slmll,  immediately  after  the  expiration  of  eigiileen  montlis, 
from  the  time  of  granting  letters  of  administration,  make  out  and  pre- 
sent to  the  Court  a  schedule,  showing  all  the  a.^sets  that  may  be  availa- 
ble to  the  credit  of  such  estate,  and  showing,  as  far  as  can  be  ascertained, 
the  amount  of  debts  chargeable  upon  the  estate;  that  a  dividend  may  be 
struck.  And  in  all  ca.-es  of  petition,  by  adminittrator,  or  executor,  to  sell 
lands  to  pay  debts,  such  schedule  shall  also  be  exhibited. 

47.  Upon  application,  by  any  executor  or  administrator,  for  an  exten- 
sion of  the  time  for  making  fimil  settlement,  such  aj  plication  shall  be  in 
writing,  and  tiled  with  the  Clerk  ;  and  shall  set  forth  the  facts  and  reasons 
upon  which  the  application  is  made.  And  unless  reasonable  diligence 
shall  have  been  used,  in  collecting  and  paying  debts,  and  in  settling  the 
concerns  of  the  estate,  the  application  will  not  be  granted. 

48.  The  Clerk  shall  attuch  a  copy  of  the  four  rules  last  preceding,  to 
all  administration  and  te.stamentary  letters,  for  which  he  shall  be  entitled 
to  charge  twelve  and  a  half  cents. 

CHANCERY. 

49.  Rules,  herpinbefore  adopted  for  proceedings  at  law,  shall  govern 
in  Chancery  proceedings  whenever  they  may  be  applicable. 

50.  Process  from  Chancery  shall  be  executed  by  the  proper  law  offi- 
cer of  the  Court,  and  not  by  the  Master  Commissioner,  unless  specially  or- 
(Jered. 

51.  In  cases  similar  to  those  in  which  security  for  costs  may  be  re- 
quired at  law,  plaintiff  may  be  ruled  to  give  bond  in  thirty  days,  executed 
by  one  or  more  responsible  persons,  resident  in  the  County,  to  the  satisfac- 
tion of  the  Clerk,  in  such  sum  as  the  Court  may  require  ;  conditioned  to 
pay  costs,  if  costs  be  decreed  against  iilaintiff:  ProD«£/er/,  application  be 
made  before  plea,  answer,  or  demurrer  filed.  The  granting  of  this  rule 
shall  be  in  the  discretion  of  the  Court,  taking  into  consideration  the  equita- 
ble circumstances  of  the  case. 

52.  Defendant,  not  having  filed  plea,  answer,  or  demurrer,  may,  at 
the  first  term  he  is  in  default,  plead,  answer,  or  demur,  instnnter;  or,  upon 
cause  shown,  may  obtain  a  continuance,  upon  such  reasonable  rule  for  plea, 
or  answer,  as  the  Court  may  impose. 

ry.i.  No  demurrer  shall  be  (iled  after  the  term  at  which  defendant's  first 
default  shall  iiave  been  opened. 

54.  After  answer  filed,  if  there  be  no  rieplication  or  exceptions  filed, 
within  the  time  prescribed  by  law,  either  party  may  set  down  the  cause 
for  hearing,  upon  bill  and  answer.  And  after  cause  is  so  set  down  for 
hearing,  no  replication  shall  be  filed,  except  by  leave  of  Court,  upon  such 
terms  as  may  a[)poar  equitable. 

55.  If  cause  be  at  issue,  upon  replication  to  plea  or  answer,  sixty  daya 
shall  he  allowed  for  eacii  party  to  take  testimony  ;  and  no  testimony  shall 
be  taken  afterwards,  without  the  leave  of  the  Court  ;  and  upon  the  expi- 
ration of  sixty  days,  either  party  may  set  down  the  couse  for  hearing. 

56.  In  cases  upon  demurrer,  exceptions  to  answer,  or  when  no  replica- 
tion is  put  in  to  a  plea,  in  time,  either  party  may  set  down  the  cause  for 
hearing. 

57.  All  causes  in  chancery,  in  which  a  hearing  is  intended,  shall  be 
set  for  hearing  at  least  twelve  days  before  the  commencement  of  the  term 


456  RULES  OF  PRACTICE. 

at  which  they  are  to  be  heard.  The  solicitor,  setting  the  cause  for  hear- 
ing, sliall  enter,  opposite  the  title  of  the  cause  on  the  docket  of  the  Clerk 
as  follows,  "this  cause  is  set  for  hearing  upon  bill  and  answer,^'  or  otherwise, 
as  the  case  may  be,  which  entry  shall  be  subscribed  by  the  solicitor's  name, 
and  be  dated  of  the  day  it  is  entered. 

58.  All  papers  or  documents,  referred  to  in  any  bill  as  parts  thereof, 
or  copies,  must  be  filed  with  the  bill  at  or  before  the  appearance  term,  or 
the  suit  may  be  dismissed,  as  for  want  of  a  bill. 

59.  Amendments  in  chancery  may  oe  made  upon  such  equitable  terms 
as  the  Court  shall  direct,  and  according  to  the  established  usages  in  chan- 
cery proceedings. 

CLERK'S  FILES,  &c. 

60.  No  person,  except  a  Judge  of  the  Court,  shall  he  permitted  to 
take  papers  from  the  files  of  tlie  Court  away  from  the  office  of  the  Clerk. 
In  cases  p^•ndlMg,  in  which  the  opposite  parties,  or  their  connsel,  shall 
deem  it  necessary  to  have  copies  of  papers  on  file,  the  Clerk  shall,  on  re- 
quest, give  copies,  and  the  expense  of  one  copy  may  be  charged  in  the 
bill  of  costs. 

61.  The  original  papers,  when  used  upon  the  trial  of  a  cause  shall, 
upon  the  termination  of  the  trial,  be  carefully  returned  to  the  Clerk  and 
replaced  upon  the  files. 

62.  In  all  matters,  upon  which  final  judgment  or  decree  is  rendered, 
or  in  which  the  action  of  the  Court  is  otherwise  terminated,  the  papers 
relating  to  each  subject  matter,  shall  be  carefully  filed  away  in  order,  each 
bundle  being  labelled  in  such  manner,  tijat  its  contents  may  be  easily  de- 
signated. 

03.  Whenever  a  final  order,  decree,  or  jurlgment  is  made,  upon  pe- 
tition for  partition  ;  i!etiti(m  for  dower;  petition  by  Administrator  Exec- 
utor or  Guardian  to  sell  land  ;  petition  umier  the  act  to  provide  for  the  ex- 
ecution of  real  contracts,  or  upon  any  other  matter  or  preceeding  upon 
which  a  full  record  is  proper  to  be  made,  the  Clerk  shall  make  up  and  en- 
ter such  complete  record,  within  the  time  limited  by  the  act  to  regulate  the 
fees  of  officers  in  civil  and  criminal  cases. 

This  rule,  shall  be  applicable  to  all  matters  connected  with  the  settle- 
ment of  the  estate  of  any  decedent  which  by  law  are  required  to  be  com- 
mitted to  record. 

,  PARTITION. 

64.  Each  demandant  in  partition  shall  with  his  petition  file  an  abstract 
of  the  deeds  of  conveyance  or  other  title  upon  which  his  claim  to  demand 
partition  depends. 


RULES  OF  PRACTICE  IN  THE  THIRD  CIRCUIT. 


1.  If  a  suit  be  commenced   ?)i /frw),  or  vacation,  the  Declaration  shall 
be  filed  by  the  fifth  Monday  after  the  rising  of  Ihe  Court 

2.  The  plea  shall  be  filed  by  the  fourth   Monday   after  the  filing  of  the 
Declaration  ;  and  if  further  pleading  be  necessary  to  form  an  issue,  every 


RULES  OF  PRACTICE.  457 

fourth  Monday  from  tlie  expiration  of  the  preceding  rule  day,  sliall  be  a 
rule  day  for  that  purpose.  Provided,  that  when  any  rule  day  shall  happen 
not  more  than  one  week  before  the  next  succeeding-  term,  the  rule  day  shall 
be  extended  the  \st  day  of  that  terra. 

3.  No  office  judgment  shall  be  signed.  The  expiration  of  the  rule  day 
has  the  same  efl'cct. 

4.  The  Court,  by  consent  of  parties,  or  on  motion  and  cause  shown, 
will  extend,  or  otherwise  vary  the  rules  of  pleading. 

5.  All  suits  will  be  called  on  the  Trial  Bucket  soon  after  the  opening 
of  the  Court ;  at  the  commencem  'nt  of  every  term,  and  every  suit  not  to 
be  tried,  or  continued,  will  be  disposed  of  on  the  first  call  of  the  Docket: 
unless  passed  on  cause  shown. 

6.  The  two  first  days  of  every  term,  or  so  much  as  may  be  required, 
will  be  devoted  to  tiie  trial  ofcriniiaal  issues.  The  residue  of  the  term,  they 
will  not  be  entitled  to  preference,  unless  a  person  is  in  custody. 

7.  All  exceptions  to  depositions,  unless  for  irrelevancy  or  incompeten- 
cy, shall  be  in  writing  and  filed  with  the  depositions,  as  soon  as  practica- 
ble, after  they  shall  be  opened  and  placed  on  the  files  of  the  Court. 

8.  The  continuance  of  a  cause,  and  the  amendment  of  pleading's,  are  to 
beat  the  cost  of  tlie  party  moving  such  amendment,  or  continuance,  unless 
the  Court  shall  otherwise  direct,  such  costs  shall  be  taxed  by  the  Clerk  in 
the  usual  manner  and  paid  in  sixty  days  and  in  default  thereof,  the  Clerk 
shall  issue  an  attachment,  returnable  at  the  next  term  thereafter,  and  on  the 
return  of  said  attachment  and  no  sufficient  cause  shown  for  not  complying 
with  said  order,  liis  cause  shall  be  stricken  fiom  the  docket:  non  prosed  or 
defaulted  as  circumstances  may  require. 

9.  No  application  for  writs  of  certiorari  will  be  heard  unless  diminution 
or  other  error  be  assigned  on  the  transcript,  or  set  forth  in  the  affidavit  of 
the  party,  or  in  the  ofiicial  statement  of  counsel. 

10.  In  suits  by  certiorari,  the  Court  v.'ill  direct  the  defendant  in  error, 
to  join  in  error  instanfer. 

U.  In  ejectment  it  shall  not  be  necessary  to  file  a  declaration  ag;ainst  tha 
tenant  in  possession,  but  the  name  of  the  casual  ejector  shall  be  erased,  and 
the  name  of  the  tenant  in  possession  shall  be  inserted,  on  motion  at  any 
time  jirevious  to,  or  ponding  the  trial. 

12.  In  ejectment  tlie  consent  rule  is  the  rule  for  a  plea,  when  entered 
into  and  iiled,  the  caus'^  is  substantially  at  issue,  and  the  defendant  will  on 
motion  previous  to,  or  pending  tlie  trial,  be  requested  to  plead  not  guilty 
iitslanltr. 

13.  No  rule  for  a  joinder  in  demurrer  can  be  required,  but  when  a  de- 
murrer ii  tiled,  the  opposite  party  shall  yAnyhslanler. 

14.  But  one  «////.  shall  be  permitted  to  examine  or  cross  examinethe 
same  witness. 

15.  In  chancery  the  parties,  or  their  counsel,  on  or  before  the  second 
day  of  the  term,  in  which  any  suit  is  to  bo  tried,  shall  furnish  the  court 
with  a  brief  of  the  points  and  authorities  on  which  they  rely,  or  in  default 
thereof,  suclisuit  may  be  dismissed,  or  continued  at  the  costs  of  the  party 
delinquent,  or  his  attorney  at  the  discretion  of  the  Court. 

IG.  In  all  cases  whetiier  in  chancery,  or  at  law,  t'ov  hearing  on  demur- 
rer, the  i)arty  demurring  shall  present  to  the  court  as  aforesaid,  a  brief  of 
the  authorities  on  whicii  he  relies  before  ihc  second  day  of  the  term,  or  in  de- 
fault thereof,  his  demurrer  may  be  overruled,  in  the  discretion  of  the  Court 
and  at  his  costs. 

17.  Notice  to  take  depositions  in  term  time  shall  not  be  considered 
reasonable  notice. 

In 


458  RULES  OF  PRACTICE. 

18.  No  cases  will  be  delayed  by  reason  of  the  absence  of  counsel,  un- 
less on  good  cause  shown. 

19.  On  motion  to  continue,  the  affidavit  or  official  statement,  shall  be 
taken  as  true  and  no  contradictory  supplemental,  or  amended  aifidavit  shall 
be  permitted. 

20.  Motions  to  continue,  must  be  placed  on  file,  on  or  before  the  se- 
cond Monday  of  the  term,  unless  for  cause  which  shall  subsequently 
come  to  thejinowledge  of  the  party  and  on  such  motion  no  argument  will 
be  heard. 

2J.  All  applications  for  the  appointment  of  administrators,  guardians, 
Jor  taverns,  tiie  renewal  of  tavern  licences,  for  ferries,  and  for  further 
time  for  administrators  to  make  settlement  will  be  heard  at  any  time  when 
convenience  will  permit,  and  at  the  Bar.  But  all  petitions  for  sales  of 
lands,  by  administrators  or  guardians, — all  petitions  for  partition — reports 
of  committees  and  appraisers— returns  of  sheriiTs,  and  all  proceedings 
which  require  to  be  examined  and  approved  by  the  court,  and  final  settle- 
ment of  administrator's  accounts,  will  be  disposed  of  by  the  judges  at  their 
chambers,  of  which  due  notice  will  be  given. 

22.  All  motions  for  new  trials,  or  in  arrest  of  judgment,  must  be  made 
and  the  motions  filed  with  the  clerk,  the  same  day  the  verdict  of  the  jury 
shall  be  given,  unless  further  time  shall  be  granted  by  the  court.  Provided, 
That  when  a  verdict  shall  be  given  after  the  court  shall  have  adjourned, 
each  motion  shall  be  filed  the  succeeding  day. 


RULES  OF  PRACTICE 
IN  THE 

I^^OUIITII    CIISCUIT. 

1.  Declarations  shall  be  filed  within  thirty  days  after  the  appearance 
term  ;  pleas  within  twenty  days  thereafter  ;  and  every  ten  days  thereafter 
a  rule  day  until  the  issue  is  joined. 

2.  The  party  in  default  by  not  complying  with  the  first  rule,  shall  not 
have  leave  to  plead  except  upon  payment  of  all  costs  of  the  term,  and  the 
opposite  party  shall  be  entitled  to   a  trial  or  not  at  his  option. 

3.  Notice  of  motions  to  dismiss  appeals  or  mesne  process  for  irregular- 
ity, shall  be  given  in  writing  to  the  counsel  for  the  other  party  at  least  one 
day,  nor  will  Kuch  motions  be  heard,  unless  made  the  day  after  appeal,  or 
process  may  have  been  filed  with  the  clerk,  if  filed  in  term  time. 

4.  Notice  in  writing  for  new  trial,  or  in  arrest  of  judgment,  shall  be 
filed  with  ihe  clerk  or  served  upon  the  other  party,  or  his  counsel,  the  day 
on  which  tlie  verdict  is  rendered,  or  they  will  net  be  heard. 

5.  On  demurrers  at  law  and  in  cases  in  chancery,  the  counsel  shall 
furnish  the  court,  twelve  hours  before  the  trial  of  the  cause,  with  a  brief 
of  the  points  relied  on,  and  of  the  authorities  to  be  cited. 

6.  On  applications  for  injunction  in  term  time,  notice  in  writing  shall 
be  given  to  the  counsel  of  the  defendant,  or  to  the  attorney  of  record  in 
the  suit  at  law  sought  to  be  enjoined,  at  least  one  day  prior  to  said  motion, 
if  they  reside  in  the  county. 

7.  No^motion  shall  be  heard  to  dissolve  an  injunction  on  bill  and  answer, 
unless  the  answer  shall  have  been  filed,  and  notice  thereof  given  to  the 
plaintiff  or  his  solicitor,  at  least  four  days  prior  to  the  motion,  if  sufficient 
time  shall  have  intervened  after  the  filing  of  the  bill. 


RULES  OF  PRACTICE.  45» 

8.  No  objection  to  the  form  of  depositions  taken  in  any  cause  will  be 
heard,  unless  they  are  reduced  to  writing,  and  tiled  with  the  Clerk,on  the 
day  previous  to  the  trial  of  the  cause. 

9.  The  clerk  may  at  the  request  of  either  of  ths  parties  or  their  coun- 
sel, open  depositions  in  any  cause  in  term  time,  although  the  court  may 
not  be  in  session;  and  shall  endorse  on  the  back  of  said  depositions,  when 
they  were  opened,  but  shall  not  permit  them  to  betaken  from  his  o£ce  or 
custody. 

10-  But  two  counsel  shall  be  heard  on  tlie  trial  of  any  cause  except  in 
cases  where  the  punishment  is  capital,  and  but  one  on  questions  respecting 
the  admissibility  of  evidence,  or  on  motion  for  any  amendment. 

11.  Proof  of  publication  required  by  law  shall  be  by  affidavit,  with  a 
copy  of  the  notice  attached,  all  of  which  shall  be  filed  with  the  clerk. 

12.  In  collection  suits,  the  plaintilFin  ascertaining  the  amount  of  judg- 
ment, will  calculate  interest  to  the  first  day  of  tlie  term,  and  all  judg- 
ments will  bear  interest  from  tiiat  date. 

13.  When  judgment  is  rendered  by  default  in  court,  the  party  taking 
it  must  be  ready  to  state  the  amount  to  the  court,  or  the  cause  shall  stand 
continued. 

14.  In  all  cases  in  which  general  demurrers  are  filed,  a  brief  of  the 
points  relied  on  shall  accompany  tlie  demurrer  and  be  filed  with  the  Clerk 
or  served  on  the  opposite  party  or  his  counsel.  And  when  a  demurrer  is 
sustained,  leave  to  amend  will  only  be  given  on  the  payment  of  the  clerk's 
snd  siierilf's  fees;  and  when  overruled,  leave  to  plead,  reply,  &c.  will 
be  allowed  only  on  the  same  ter.ris. 

15.  The  substance  of  a  bill  of  exceptions  lo  the  opinion  of  the  court, 
must  be  committed  to  writing  at  the  time  the  exceptions  are  taken. 

»  16.  In  all  cases  where  any  person  is  admitted  to  defend  in  ejectment  in 
place  of  the  casual  ejector,  he  shall  be  required  to  confess  the  lease  entry 
and  ouster,  to  admit  himself  in  possession  of  so  mucii  of  the  premises  as 
he  defends  for,  defining  the  extent  and  boundary  of  that  possession  and  to 
plead  not  guilty  ;  all  which  shall  be  reduced  to  writing  and  signed  by  coun- 
sel, whereupon  the  issue  shall  be  considered  made  up,  without  any  change 
of  the  declaration. 


ADDITIONAL  RULES  ADOPTED  AT  JULY  TERM,  1831. 


1.  No  motion  for  the  continuance  of  any  cause,  for  a  reason  known  to 
the  party  at  the  commencement  of  llie  term  shall  be  heard  after  the  first  day 
ofthe  term  . 

2.  A  motion  for  the  continaincc  of  a  cause  the  second  time  on  acco  unt 
of  the  absence  of  witnesses,  shall  hi  by  affidavit  setting  forth  tiie  matters 
expected  to  be  proven  by  the  witnesses,  and  all  motions  for  a  continuance, 
shall  be  submitted  witiiout  argument. 

y.  In  all  cases  of  certiorari,  after  the  return  is  made,  errors  shall  be 
assigned  and  the  issue  made  up  in  tlie  same  time  allowed  for  filing  pleadings 
in  cases  at  law. 

4.  Ordered  that  executors  and  administrators,  shall  in  all  caess  keep 
a  separate  account  of  tiic  last  sickness  and  funeral  expenses,  which  sliall 
be  carried  into  and  form  itc.ns  of  the  general  account. 

5.  That  executors,  administr.itors  and  guardians,  in  making  out  their 
final  account,  for  settlement  with  the  court,  shall  state  the  time  of  receiv- 


460  RULES  OF  PRACTICE. 

incranv  eum  of  money  not  less  than  ten  dollars,  and  also  the  time  cf  pay- 
ment of  any  sum  not  less  than  ten  dollars  aforesaid,  and  the  same  shall  be 
entered  in  the  accounts  in  the  order  of  time  in  which  they  accrued. 

6  All  moticms  for  extending  the  time  of  executors  and  administrators 
for  settlement,  shall  be  founded  on  allidavits  stating  the  reasons  why  it  is 
necessary,  which  shall  be  filed.  .  r     .1    » 

7  The  Commissioners  of  Insolvents,  shall  in  a  book  kept  for  that  pur- 
pose make  fair  entries  of  all  his  proceedings  in  applications  for  the  benefit 
of  the  act  for  the  relief  of  insolvent  debtors  ;  stating  at  whose  suit  the  ap- 
plicant is  taken,  and  whether  on  mesne  or  final  process,  a  correct  transcript 
of  which  shall  be  filed  in  the  clerk's  ofnce,  on  or  before  the  first  day  of  the 
term  next  after  the  notice  required  by  law  shall  have  been  given,  at  which 
time  said  notice  shall  be  also  proved  and  filed  in  said  office. 


RULES  OF  PRACTICE  IN  THE  FIFTH  CIRCUIT. 

1.  Ordered,  That  in  all  cases  commenced  in  this  Court,  when  the  writ 
is  sued  out  before  the  term  to  which  it  is  returnable,  the  plaintiff  shall  file 
his  declaration  during  the  term  to  which  the  writ  is  returned;  and  in  cases 
when  the  writ  is  returnable  forthwith,  the  declaration  shall  be  filed  within 
twenty  days  after  the  term  to  which  ihe  writ  is  returned. 

2.  Ordrred,  That  in  cases  brought  into  this  Court,  by  appeal  or  cer- 
tiorari, the  plaintift"  shall  file  his  decFaration  within  twenty  days  after  the 
term  at  which  the  appeal  is  entered,  or  the  judgment  of  justice  is  reversed. 

3.  Ordered,  That  pleas,  replications,  rejoinders,  sur-rejoinders,  rebut- 
ters and  sur-reiiuUers,  sliall  in  all  cases  be  filed  in  thirty  days  after  the  dec- 
laration or  previous  pleading  shall  have  been  filed. 

4.  Ordered,  That  parties  entitled  to  declaration  or  other  pleading,  may 
in  vacation  enter  an  ollice  judgment  on  the  clerk's  docket, against  theparty 
neglecting  to  file  liis  pleading  within  the  rule. 

5.  Ordered,  That  in  cases  brought  by  certiorari,  the  plaintiff  in  error 
shall  assign  errors  within  the  term  to  which  the  writ  is  returned,  and  the 
defendant  in  error  shall  plead  thereto  within  thirty  days  after  the  term. 

6.  Ordered,  That  office  judgments  shall  be  afiirmed  of  course,  upon 
application  ofthe  party  signing,  at  any  time  after  the  second  day  of  the  term 
next  succeeding  the  entry  ofthe  office  judgment. 

7.  Ordered,  That  the  party  against  whom  an  ofBce  judgment  is  signed, 
may  at  any  time  before  the  entry  of  final  judgment,  have  the  same  set  aside 
upon  terms;  which  terms  shall  be,  that  he  lile  immediately  the  pleading, 
for  the  want  of  which  judgment  has  been  signed  against  him;  and  (because 
shall  stand  for  trial  as  if  the  issue  had  been  regularly  made  up,  except  that 
the  party  taking  the  office  judgment  shall  have  the  option  to  continue  at  the 
costs  ofthe  other  party. 

3.  Ordered,  That  the  party  setting  aside  an  office  judgment,,  may,  by 
notice  in  writing,  at  any  time  after  twenty-four  hours  from  the  time  of  set- 
ting aside  such  judgment,  call  upon  the  other  party,  to  elect  whether  he  will 
try  or  continue  the  cause,  which  election  shall  be  in  writing,  and  filed 
with  the  Clerk.-  and  if  the  party,  when  called  upon,  does  not  elect,  the  cause 
shall  be  continued  generally. 

9.  Ordered,  That  when  an  office  judgment  is  set  aside,  and  theparty 
signing  the  judgment  shall  elect  to  try  the  cause  at  the  same  term,  such 
cause  shall  be  by  the  Clerk  immediately  placed  at  the  heel  ofthe  docket. 


RULES  OF  PRACTICE.  461 

CONTINUANCES. 

10.  Ordered,  That  all  afiUlavits  to  obtain  continuances  upon  account  of 
the  absence  of  witnes^ses,  shall  set  forth  tlie  matters  that  the  party  expects 
to  prove  liy  the  witness  upon  account  of  whose  absence  the  continuance  is 
requested. 

11.  Ordered,  That  no  motion  for  the  continuance  of  any  cause,  for  a 
reason  known  to  thn  party  at  the  coinniencenicnt  of  the  term  be  received 
after  tiie  tirst  day  of  the  term. 

12.  Ordered,  Tiiat  the  facts  upon  which  motions  for  continuances  are 
founded,  shall  be  verified  by  affidavit,  or  the  statement  of  counsel,  unless 
they  appear  of  record;  and  such  motion  shall  be  submitted  without  argu- 
ment. 

18.  Ordered,  That  indictmems  shall  be  tried  the  firft  term  that  the 
defendant  appears,  unless  good  cause  be  shown  for  a  continuance  as  in 
civil  cases,  and  rules  tentii  and  twelfth  shall  be  applied  to  criminal  as  well 
as  civil  cases. 

14.  Ordered,  That  all  cases  not  otherwise  disposed  of  at  any  term, 
shall  be  continued  of  course,  and  such  continuance  may  be  entered  by  the 
Clerk,  at  any  time,  upon  his  docket. 

DEPOSITIONS. 

15.  Ordered,  That  after  issue  joined  in  any  cause,  either  party  may 
take  out  a  dedimus  potestatem,  to  lake  the  deposiHoiis  of  absent,  going  or 
intirm  witnesses,  directed  to  any  judicial  officer,  Clerk  of  a  Court  of  Record, 
or  master  in  Chancery,  in  the  United  Stales,  being  disinterested,  or  to  such 
person  or  persona  as  tlie  [)arlii's  may  by  writing  agree  upon — to  which  ded- 

'inius  siuiU  be  attached  the  interrogatories  to  be  put  to  tiie  witnesses. 

1(5.  Ordered,  Tliat  the  piirty  wishing  to  take  the  depo.-^itions,  shall 
file  liis  interrogatories  with  the  Clerk  of  tiie  Court,  and  gjive  notice  thereof 
to  tlie  ojiposiie  party  or  his  attorney,  wlio  shall  have  ten  days  to  file  cross 
inlcrogatories;  at  tlie  expiration  of  which  period  the  Clerk  siiall  issue  the 
dedimus  at  tiie  request  of  either  party — provided,  that'  ifujion  the  filing  of 
the  cross  interrogatories,  the  other  party  shall  wish  to  file  additional  inter- 
rogatories, he  may  do  so,  giving  notice  and  waiting  for  cross  interrogato- 
ries, as  before, 

17.  Ordered,  That  depositions  taken  under  the  above  rules,  may  upon 
request  ot'eilher  party,  be  opened  at  any  time  by  the  Clerk,  he  taking  care 
to  endorse  on  the  deposition  when  and  by  whom  opened. 

18.  Ordered.  That  no  exceptions  to  depositions  for  other  causes,  tlian 
the  competency  of  the  witness,  or  the  competency  or  relevancy  of  the  tes- 
timony, shall  be  heard,  unless  the  same  be  made  in  writing,  and  notice 
thereof  given  to  the  opposite  counsel,  before  the  cause  ia  caf  ed  for  trial. 

li).  Ordered,  That  a  notice  to  take  depositions  on  a  day  in  term  time, 
shall  not  be  considered  a  reasonable  notice. 

20.  Ordered,  Th  it  after  a.  de|)osition  has  been  returned  to  the  Clerk 
of  the  Court,  the  party  taking  it,  shall  not  have  liberty  to  withdraw  it;  but 
thi^  ojiposite  party  may  use  it  on  the  trial;  provided,  the  testimony  be  in 
itself,  legal  and  proper. 

MOTIONS. 

21.  Ordered,  That  all  motions  to  set  aside  executions,  levies,  apprais- 
ments  or  sales;  to  set  aside  judgmcuts,  or  other  proceedings  for  irregulari- 


463  RULES  OF  PRACTICE. 

ty;  to  set  aside  non-suits  or  judgments  entered  on  default;  to  make  entries 
in  journal,  nunc  pro  tunc,  or  for  amending  journal  entries  after  the  lerm  in 
which  they  arc  entered;  for  new  trials,  or  in  arrest  of  judgment;  for  quash- 
ing appeals;  for  changing  venue;  to  set  aside  awards,  or  for  attachments, 
shall  be  made  in  writing,  setting  forth  the  grounds  of  such  motion,  and  the 
testimony  in  support  of  or  igainst  such  motion,  if  not  of  record  or  on  file, 
shall  be  reduced  to  writing,  and  filed;  and  when  the  proceeding  is  not  in  its 
nature  ex  parte,  the  opposite  party  oc  his  counsel  shall  have  twenty-four 
hours  notice. 

22.  Ordered,  That  motions  to  amerce  Sheriffs  shall  be  in  writing,  set- 
ing  out  the  cause  of  amercement,  and  the  evidence  on  both  sides,  if  not  of 
record,  or  on  the  files  of  the  Court,  shall  betaken  in  writing,  under  the  same 
rules  and  regulations  that  evidence  in  chancery  cases  is  tiiken. 

23.  Ordered,  That  all  applications  for  the  removal  of  Executors,  Ad- 
ministrators or  Guardians,  shall  be  by  petition  in  writing,  setting  forth  the 
causes  of  complaint;  and  notice  of  the  application,  with  a  copy  of  the  causes 
of  complaint,  shall  be  served  on  the  defendant  in  tlm  petition,  at  least  ten 
days  before  the  application  is  made;  and  the  evidence  shall  be  reduced  to 
writing,  as  in  case  of  motions  for  amercement. 

AMENDMENTS. 

24.  Ordered,  That  all  pleadings  on  the  law  side  of  the  Court,  may  be 
amended,  in  vacation,  before  judgment,  of  course;  the  other  parly's  cost, 
accrued  since  filing  the  defective  pleading,  being  first  paid;  and  upon  notice 
given  to  the  other  party  of  tlie  nmendment,  the  subsequent  pleadings  shall 
be  filed  agreeably  to  rule  third;  dating  from  the  time  of  the  notice  of  the 
amendment. 

25.  Ordered,  That  if  any  pleading  be  amended  after  subsequent  plead- 
ings are  filed,  the  other  party  shall  have  a  right  to  answer  the  amended 
pleading  anew;  but  if  he  does  not  within  the  rule  plead  anew — he  shall  be 
understood  to  abide  by  the  former  plea. 

26.  Ordered.  That  in  no  case  when  pleadings  are  amended  shall  the 
original  pleadings  be  withdrawn  from  the  files,  and  no  part  shall  be  obliter- 
ated so  as  to  render  the  same  illegible. 

27.  Ordered,  That  when  amendments  are  allowed,  in  any  case  in 
term  time,  by  order  of  Court,  at  the  costs  of  the  party  amending — he  shall  be 
required  to  pay  the  costsof  the  amendment  within  thirty  days  thereafter — 
and  if  such  costs  are  not  paid  in  that  time,  the  other  party  may  upon  appli- 
cation to  the  Court,  enforce  payment  by  attachment. 

28.  Ordered,  That  when  parties  except  to  any  order  or  judgment  of 
the  Court,  a  memorandum  in  writing  of  the  particular  order  or  judgment 
excepted  to,  shall  be  made,  by  the  counsel  excepting,  at  the  time  the  order 
is  made,  or  judgment  pronounced,  and  given  to  the  Court  during  trial  or  im- 
mediately thereafter. 

29.  Ordered,  That  in  all  interlocutory  questions  only  one  Counsel  shall 
be  heard  upon  a  side;  but  one  Counsel  upon  a  side  shall  examine  a  witness; 
and  but  two  Counsel  shall  be  heard  for  the  same  party  upon  the  trial  of  any 
cause,  except  in  trials  for  capital  ofiiences. 

30.  Ordered,  That  all  civil  causes  for  Jury  shall  be  called  on  for  trial 
in  the  order  in  which  they  stand  in  the  issue  docket,  and  shall  be  tried  when 
called  on  to  trial,  unless  continued,  or  by  consent  of  both  parties  put  at 
the  heel  of  the  docket — and  criminal  causes  shall  be  subject  to  the  same 
rule,  except  that  the  Court  will,  when  convenience  requires  it,  assiga  a  day 
for  trial  of  Capital  or  Penitentiary  causes. 


RULES  OF  PRACTICE.  403 

31.  Ordered,  That  proof  of  publications  required  by  law,  and  notices, 
shall  in  all  cases  be  by  affidavit,  with  a  copy  of  the  publication  or  notice 
attached;  all  of  which  sliall  be  filed  with  the  Clerk. 

32.  Ordered,  That  judgments  on  warrants  of  Attorney  may  be  enter- 
ed up  at  anytime  during  the  term  by  the  Clerk  without  application  to  the 
Court,  the  warrant,  or  copy  thereof  being  filed. 

EJECTMENT. 

33.  Ordered,  That  in  ejectment  causes,  the  copy  of  the  declaration 
served  on  tenant  in  possession,  shall  be  filed  in  Court,  and  shall  be  the  dec- 
laration upon  which  the  cause  shall  proceed,  and  an  amendment  of  it,  as  to 
the  name  of  Defendant,  shall  not  bo  necessary. 

34.  Ordered,  That  when  any  person  is  made  Defendant  in  the  room  of 
the  casual  ejector,  he  shall  file. a  written  confession  of  lease,  entry  and 
ouster,  and  that  he  is  in  possession  of  the  premises,  or  that  part  of  them 
for  which  lie  defends;  and  in  case  he  does  not  defend  the  whole,  a  particular 
statement  of  the  part  for  vvhicli  he  does  defend,  together  with  his  plea  of 
not  guilty;  provided,  that  when  one  tenant  in  common  is  sued  by  his  co- 
tenant,  he  shall  not  be  compelled  to  confess  ouster. 

35.  Ordered,  That  in  proceeding  under  the  last  rule,  the  following 
form  shall  be  preserved  as  nearly  as  may  be. 

SS.     John  Doe  ^ 
on  demise  of  A.  15 .   | 

vs.  )■   Ejectment. 

C.  D.  (adding  other  | 
def'ts.  if  necessary)  J 

E.  F.  who  is  by  the  Court  here  admitted  to  defend  the  trespass,  and 
ejectment,  complained  of  in  the  Plaintiff's  declaration,  (or  if  he  defends 
for  only  a  part  of  the  premises;  say  the  trespass  and  ejectment  as  to  a  part 
of  the  premises  described  in  plaintiff's  declaration,  to  wit:  here  describe, 
particularly  the  premises  for  which  the  defendant  defends,)  comes  into 
Court,  by  J.  F.  his  Attorney,  and  confesses  the  lease,  entry  and  ouster  in 
the  declaration  supposed,  and  that  he  is  in  possession  of  the  said  premises, 
(adding,  if  he  defends  for  part  only,  as  to  which  he  is  made  defendant.) 

And  the  said  E.  F.  by  his  Attorney,  says  he  is  not  guilty  in  manner  and 
form  as  the  said  plaintiff  has  declared  against  him,  and  of  this  he  puts  him- 
self upon  the  Country — and  the  j)laintiff"doth  the  like. 

36.  Ordered,  Tliat  the  defendant  in  ejectment  may  before  plea,  fcc. 
or  afterwards,  if  necessary,  by  notice  in  writing  served  on  the  plaintiff  or 
his  Attorney,  require  the  piaintilflo  specify  in  writing,  the  lands  which 
he  means  to  proceed  fur;  and  after  such  notice  given,  no  further  proceed- 
ings on  tlie  part  of  plaintiff  shall  be  had  until  such  specificatioli  be  furnish- 
ed to  the  defendant's  Attorney. 

37.  Ordered,  That  in  cases  of  certiorari  issued  from  this  Court,  direc- 
ted to  two  justices  of  the  peace,  acting  under  the  act  against  forcible  entry 
and  detainer,  or  to  one  justice,  actint;  under  the  bastardy  act,  the  same  no- 
tice shall  be  given  as  is  provided  by  law  in  other  cases  of  certiorari  directed 
to  justices. 

3!:^.  Ordered,  That  in  all  cases  hereafter,  when  judgment  shall  be  ren- 
dered for  plaintiff  for  costs,  the  Clerk  shall  not  in  taxing  the  costs,  under 
the  judgment,  include  any  costs  made  by  defendant — and  also  when  judg- 
ment shall  be  entered  for  defendant  for  costs — no  costs  shall  be  taxed  under 
it  made  by  plaintiff. 


464  RULES  OF^PRACTICE. 

39.  Ordered,  That  no  person,  except  a  jinlgc  of  the  Court  be  permitted 
to  take  pgrtiers  from  the  files  of  the  Court,  but  in  all  cases  where  the  parties 
or  their  counsel  shall  think  it  necessary  to  have  copies  of  papers  on  file,  the 
Clerk  shall,  on  request,  give  copies,  the  expense  of  which  shall  be  charged 
in  the  bill  of  coats. 

ADMINISTRATION. 

40.  Ordered,  That  no  letters  of  Administration  on  any  estate  shall  be 
granted  to  any  person,  there  being  in  the  county  any  one  having  by  law  a 
prior  right  to  fhe  administralion,  unless  such  person  or  persons  having  pri- 
or right,  iiave  previous  notice  to  come  before  the  Court  and  show  cause  why 
letters  of  administration  should  not  be  granted  to  them — or  a  written  decli- 
nation of  the  administration  by  such  persons  having  prior  right,  previously 
be  filed  with  the  Clerk  of  the  Court.  ^ 

41.  [Repealed.] 

42.  [Repealed.] 

43.  [Repealed.] 

44.  Ordered,  That  the  administration  account  in  all  cases,  and  in  case 
of  insolvent  estates,  the  account  of  last  sicknes,<5  and  funeral  expenses  shall 
be  kept  distinct,  and  form  items  in  the  general  account. 

45.  Ordered,  That  Guardians,  in  making  out  their  accounts,  for  the  ap- 
probation of  the  court,  shall  state  the  time  of  each  receipt  of  money,  and 
also  the  time  of  each  payment,  and  the  items  of  charge  and  credit,  shall  be 
put  into  the  accounts,  according  to  the  order  of  time  in  which  they  ac- 
crued. 

46.  Ordered,  That  all  accounts  of  Administrator,  Executors,  or  Guar- 
dians, which  have  been  submitted  to  the  Court,  and  have  not  been  acted 
upon,  and  all  accounts  as  al'oresaid,  which  shall  be  submitted  to  the  Court, 
be  referred  to  the  master  commissioner  of  this  Court,  who  shall  report  there- 
on to  this  Court  as  soon  as  convenient;  which  reportsball  state  the  amount 
of  moneys  on  hand  at  the  time  of  the  death,  the  amount  received  from  sales  of 
personal  estate,  also  the  amount  received  from  sale  of  real  estate,  if  any; 
amount  of  debts  collected;  amount  of  interest  if  any  charged,  against  ac- 
countant; stating  particularly  fin-  what  time  and  upon  what  sums  such  interest 
is  charged;  also  amount  of  debts  paid;  expenses  of  last  sickness,  where  es- 
tate is  insolvent,  and  the  amount  of  costs  of  administration  and  funeral 
expenses;  and  if  the  master,  upon  examination,  shall  report  unfavorably  to 
any  part  of  the  account,  he  shall  state  his  reason  for  so  doing,  and  the 
master,  fir  his  services,  shall  be  allowed  the  same  fees  as  are  allowed  in 
similar  cases,  to  be  paid  out  of  the  estate. 

47.  Ordered,  That  all  applicntions  to  the  court,  for  the  sale  of  real  estate 
or  equitable  interests  in  the  same  by  executors  or  administrators  shall  be 
by  petition,  in  which  shall  be  stated  the  names  of  the  heirs,  the  amount  of 
assets,  so  far  as  known  to  the  petitioner  and  the  amount  of  debts  owing  by 
the  estate,  a  scliedule  of  which  shall  accompany  the  petition;  which  petiton 
may  be  filed  eitlier  in  term  time  or  vacation,  and  all  such  petitions  shall  be 
docketed  and  put  upon  trial  list. 

48.  [Repealed.] 


RULES  OF  PRACTICE.  465 

CHANCERY  RULES. 

49.  [Repealed.] 

50.  Ordered,  That  in  all  cases  in  chancery,  wliere  a  defendant  Bhall 
not  file  his  answer,  plea  or  demurrer,  within  the  time  prescribed  by  law 
or  the  rules  of  the  court,  complainant  may  file  in  the  clerk's  office  a  decree 
nisi,  upon  the  bill  taken  a^^onfessed  ;  which  decree  shall  of  course,  be 
made  final,  at  the  next  or  any  subsequent  term  of  the  court,  unless  sufficient 
cause  be  shown  ;  provided,  that  the  counsel  filing  decree  shall  at  the  samo 
time  enter  on  ilie  clerk's  docket  a  memorandum  dated  and  signed  by  him, 
stating  that  bill  is  taken  as  confessed,  and  decree  nisi  filed  ;  provided  also, 
that  such  decree  be  filed  at  least  ten  days  before  the  term  at  which  it  is  made 
final,  and  a  copy  of  the  notice  of  the  pendency  of  the  bill  required  by  law 
to  be  published  as  to  such  defendants  as  reside  without  tiie  state  shall  have 
been  forwarded  by  mail  to  each  of  such  defendants  whose  residence  is  known 
immediately  after  the  publication  of  the  same. 

51.  Ordered,  That  in  case  answer  be  filed,  but  no  exception  or  rep- 
lication be  filed  within  the  time  prescribed  by  law,  or  the  rule  of  the  court, 
either  party  may  set  down  the  cause  lor  hearing  upon  bill  and  answer,  and 
after  cause  is  set  down  for  hearing  as  above,  no  replication  shall  be  filed 
without  the  special  leave  of  the  court,  and  upon  such  terms  as  to  them 
shall  seem  proper. 

52.  Ordered,  That  if  cause  in  chancery  be  put  at  issue  upon  replica- 
tion to  answer,  or  plea,  sixty  days  shall  be  allowed  to  each  party  to  take 
testimony,  and  no  testimony  shall  be  taken  afterwards,  without  the  special 
leave  of  the  court,  and  upon  the  expiration  of  the  sixty  days,  either  party 
inay  set  down  the  cause  for  hearing. 

53.  Ordered,  That  in  cases  when  replication  be  not  put  into  plea  with- 
in the  time  allowed,  or  in  case  of  demurrer  to  bill;  either  party  may  set 
down  the  cause  for  hearing. 

.54.  Ordered,  That  all  causes  in  chancery,  shall  be  set  for  hearing,  at 
least  twelve  days  before  the  commencement  of  the  term  at  which  they  are 
to  be  heard. 

.55.  Ordered,  That  all  causes  in  chancery  shall  be  set  for  hearing  in 
the  following  manner  ;  the  solicitor  setting  for  hearing,  shall  enter  on  the 
docket  of  the  clerk,  as  follows:  "This  cause  is  set  for  hearing  upon  bill 
and  answer,"  or  as  the  case  may  be,  v/hich  entry  shall  be  subscribed  by 
the  solicitor,  and  be  dated  of  the  day  it  is  entered. 

•55.  Ordered,  That  all  papers  or  documents;  referred  to  by  any  bill  aa 
part  thereof,  must  be  filed  with  it,  or  the  suit  may  be  dismissed,  as  for  want 
of  a  bill. 

.57.  Ordered,  That  in  all  cases  set  for  hearing,  upon  bill  and  answer, 
or  upon  bill,  answer,  replication,  and  testimony,  the  complainant's  coun- 
sel shall  prepare  a  brief,  containing  an  abstract  of  the  case,  with  the  points 
and  authorities  relied  on,  to  be  presented  to  the  court  on  the  first  day  of 
the  term;  and  if  such  brief  be  not  prepared  and  presented,  the  cause  may 
be  cither  dismissed  or  continued  at  the  costs  of  the  complainant,  or  his 
counsel,  as  the  court  may  direct. 

5S.  Ordered,  That  in  all  cases  set  for  hearing  upon  plea  or  demnrrer, 
or  upon  plea  and  replication,  the  party  pleading  or  demurring,  shall  pre- 
pare and  present  a  brief,  as  is  required  iu  the  preceding  rule  ;  and  if  such, 
brief,  be  not  prepared  and  presented  as  aforesaid,  the  pleu  or  demurrer  may 
be  over-ruled  at  the  costs  of  the  counsel  of  tlici)arty  pleading  or  demurring. 

59.     Ordered,    That  chancery  causes  will  be  called  and  tried  in  the  or- 

k  K  K 


466  RULES  OF  PRACTICE. 

der  in  which  they  atand   on  the  docket  of  the  court,  unless  for  good  cause 
shown,  the  cause  be  passed  over  or  continued. 

60.  Ordered,  That  in  the  trial  of  chancery  cases,  the  counsel  furnish- 
ing the  brief  will  read  the  papers  (unless  this  be  dispensed  with  by  the 
court :)  and  open  the  cause  ;  the  counsel  for  tiie  other  party  will  reply, 
the  opening  counsel  will  rejoin,  and  this  will  close  the  discussion,  and  this 
rule  will  be  observed  whether  the  argument  be  in  writing  or  viva  voce. 


ADDITIONAL 

61.  Ordered,  That  executors  and  administrators,  in  making  out  their 
accounts  for  the  approbation  of  tiie  court,  shall  state  wiiat  moneys  in  pos- 
session of  their  testator  or  intestate  at  tlie  time  of  his  death  have  been  re- 
ceived by  tiiem,  stating  particularly  the  amount  of  each  receipt,  the  time 
when,  and  of  whom  received.  •  Such  account  shall  also  state  what  debts 
due  to  the  estate  have  been  collected,  stating  particularly  the  time  when 
any  payment  was  received,  of  whom,  and  the  amount  at  each  time — such 
account  sliall  also  state  what  moneys  have  been  received  on  account  of  sales 
of  real  estate,  stating  particularly  the  time  and  amount  of  each  receipt, 
and  of  whom  received,  and  the  items  of  their  respective  accounts  shall  be 
entered  in  the  order  of  time. 

Provided,  That  the  court  may,  for  special  cause  shown,  excuse  from  a 
full  compliance  with  this  rule,,  when  the  settlement  of  the  estate  has  really, 
commenced. 

62.  Ordered,  That  the  accounts  of  executors  and  administrators, 
shall  state  for  the  information  of  the  court,  the  amount  of  the  schedule  re- 
turned of  debts  due  the  estate,  the  time  and  am.ount  of  each  sale  of  per- 
sonal or  real  estate,  and  the  credit  given  at  each,  if  sold  on  a  credit  with- 
out interest,  such  accounts  shall  also  contain  a  list  of  debts  due  the  estate, 
and  which  the  executor  or  administrator  has  not  been  able  to  collect. 

63.  Ordered,  That  the  final  accounts  of  executors  and  administrators 
shall  show  the  time  of  each  payment  on  accounts  of  debts  owing  by  the 
estate  for  which  they  claim  a  credit,  and  to  whom  paid,  and  the  items  shall 
be  entered  in  the  account  according  to  the  order  of  time,  except  that  the 
account  of  last  sickness  and  funeral  expenses  and  costs  of  administration, 
may  be  kept  distinct :  And  where  accounts  against  the  estate  are  paid, 
a  copy  of  the  account  containing  the  items  shall  accompany  the  receipt  and 
be  filed  with  it. 

64.  Ordered,  That  when  executors  or  administrators  shall  apply  to  the 
court  for  an  extension  of  time  allowed  for  making  their  final  settlement, 
they  shall  exhibit  to  the  court  in  writing,  a  statement  of  the  facts  upon 
which  they  ground  their  application,  which  shall  be  filed,  and  such  state- 
ment shall  show  whether  there  are  any  undisputed  claims  against  the  es- 
tate upon  which  they  fear  suits  will  be  brought.  Also,  the  amount  of  mon- 
eys, if  any,  in  their  hands,  belonging  to  the  estate,  and  if  the  application 
be  made  on  account  of  debts  due  the  estate,  being  uncollected,  such  state- 
ment shall  show  whether  due  diligence  has  been  used  to  collect,  and  par- 
ticularly whether  suits  have  been  brought  and  the  time  of  bringing. 

•:;•  65.  Ordered,  That  the  clerk  of  this  court  furnish  to  executors  and  ad- 
miaistrators  (with  a  copy  of  the  will  or  letters  of  administration)  a  copy 
of  rules  forty  to  forty-seven,  and  from  sixty-one  to  sixty-five  inclusive,  for 
which  he,  shall  be  allowed  a  reasonable  compensation  in  his  bill  of  fees 
agaiast  the  estate. 


RULES  OF  PRACTICE.  467 

RULES  OF  PRACTICE 


IN    THE 

SIXTH  CIRCUIT. 


Declaration  shall  bo  filed  in  forty  days  after  the  rising  of  the  Court  or 
non-suit,  and  plea  shall  be  filed  in  thirty  days  thereafter  otherwise  default. 
The  court  shall  take  short  rules  in  term  to  prevent  delay,  (a) 


RULES  OF  PRACTICE 
IN  THE 

(6)  Tlie  clerk  will  keep  in  his  office,  a  rule  docket  for  chancery  causes, 
in  which  he  siiall  note  all  deftiults,  and  the  filing  of  all  pleadino-s.  The 
clerk,  on  his  continuance  docket  of  chancery  causes,  sliall  note  alTdefaults: 
he  shall  endorse  on  each  paper  filed  in  a  cause,  the  time  of  filing.  The 
rules  will  bo  in  strict  conformity  to  the  law  directing  the  mode  of  proceed- 
ing in  cliancery  causes. 

2.  All  papers  or  documents  referred  to  by  any  bill  or  answer,  as  forming 
a  part  of  the  bill  or  answer,  shall  be  filed  tlierevvitli;  or  tlie  bill  may  be 
dismissed,  or  the  answer  rejected  by  tlie  Court  for  that  cause. 

3.  Tiie  dejiositions  of  witnesses  within  this  county,  to  be  read  on  the 
hearing  of  any  cause,  shall  be  taken  at  tlie  office  of  tlie  master  commission- 
er of  this  Court,  before  the  master  on  lawful  notice  being  given  to  the  ad- 
verse party,  of  the  time  and  place  of  taking  tlic  same.  Tiie  depositions  of 
witnesses  wiio  are  unable  to  travel  to  the  masters  otHce,  although  they  are 
within  the  county,  may  be  taken  at  any  place,  before  any  .Tud^e,  or  Jus- 
tice of  tlic  county,  on  lawlul  notice  of  the  time  and  place,  tScc.  of  taking 
being  given,  to  tlic  adverse  party  or  his  attorney.  Notice  of  the  taking  of 
a  deposition,  must  be  proved  by  afiidavit  of  a  disinterested  witness,  on"  or 
annexed  to  the  copy  of  the  notice  served  by  the  witness.  The  copy  of  the 
notice  with  the  alndavit,  siiall  be  filed  with  t4ie  master  commissioner  at  the 
time  he  takes  the  deposition.  The  master  commissioner  or  clerk  of  the 
Court,  shall  in  no  case,  without  the  leave  of  the  court,  permit  depositions 
in  a  cause  to  be  taken  from  Iiis  olHce,  or  examined  except  in  his  presence, 
by  any  person.  Twelve  days  before  the  cause  is  set  for  hearing,  the  mas- 
ter or  clerk  may  give  to  eacli  party,  copies  of  the  depositions. 

4.  The  clerk  on  application,  shall  issue  subptcnas  for  witnesses  to  testify 
in  a  cause  returnable  before  the  master  commissioner  in  chancery,  at  his 
ofiicc  in  vacation. 

.'5.  No  exception  to  a  deposition,  siiall   be  taken  on  the  liearing  of  any 

cause,  fiir  the  want  of  notice  of  the  time,  or  place  of  taking  the  same,  or 

for  a  defect  in  tiie  caption,  or  because  it  was  not  delivered  into  Court,  or  to 

the  clerk  sealed,  or  not  opened,  in  Court,  unless  notice  was  given  to  the 

- — - — ._       . ■'  ■  "      ■■    ■■■■>. 

(«)     ThcFC  Rules  do  not  extPinI  to  all  ilie  Coimiiesin  the  Circuit. 

(i)    These  Rules  do  not  cxleivl  to  nil  liie  Counties  in  the  Circuit.  . 


468  RULES  OF  PRACTICE. 

adverse  party,  or  his  attorney,  of  such  exception,  by  the  second  day  of  the 
term,  at  which  the  cause  is  heard;  and  the  objections  at  the  same  time  en- 
dorsed on  the  depositions  objected  to,  or  filed  with  them. 

6.  No  deposition  sliall  be  used  on  the  hearing  of  any  cause,  which  was 
not  taken  before  the  commencement  of  the  term  at  which  the  cause  is  heard, 
and  opened  as  early  as  the  lirst  day  of  the  term. 

7.  No  cause  will  be  heard  until  the  Court  have  had  for  one  day,  a  clear 
and  concise  abstract  of  the  bill  and  answer,  and  depositions,  and  other  doc- 
uments, evidence  in  the  cause,  and  a  statement  of  the  points  relied  on  by 
the  party  who  brings  on  the  cause,  signed  by  himself  or  his  counsel,  and  de- 
livered to  the  Court. 

8.  On  the  hearing  of  a  cause,  but  two  counsel  on  a  side  shall  argue;  one 
open,  two  for  the  adverse  party  follow,  one  to  reply.  In  a  cause  of  great 
importance  and  difficulty,  before  the  argument  commences,  leave  may  bo 
had  for  a  greater  number  to  argue. 

9.  No  motion  to  dissolve  an  injunction  will  be  heard,  unless  the  defend- 
ant's answer  or  demurrer  has  been  filed  four  days-  and  until  the  defendant 
or  his  counsel,  has  had  two  days  notice  in  writing,  of  the  motion,  or  good 
cause  shown  why  such  notice  was  not  given.  All  documents  to  be  used 
on  the  motion,  unless  they  are  records  of  one  of  the  courts  of  record  of  this 
county,  shall  be  filed  in  the  cause  at  least  two  days  before  the  motion  is 
made. 

10.  TheSilOth,  11th  and  12th  rules  of  this  Court  on  the  law  side  on  the 
subject  of  motions  and  affidavits,  will  govern  the  Court  and  parties  and 
counsel  in  chancery. 

11.  The  party  for  whom  the  Court  decree  must  draw  up  the  decree,  pre- 
sent it  to  the  adverse  party  or  counsel,  for  inspection,  or  show  cause  why 
he  has  not  done  so,  and  lay  it  before  the  Court  to  be  signed  and  entered 
at  the  same  term,  unless  further  time  until  next  term  is  granted  by  the 
Court. 


RULES  OF  PRACTICE 

FOR  THE  COURT  OF  COMMON  PLEAS  OF  WARREN  COUNTY. 

ADOPTED  NOVEMBER  TER3I, 

1820. 

1.  The  first  Monday  of  every  month,  shall  be  a  rule  day. 

2.  The  plaintiff  shall  file  his  declaration  where  special  bail  is  required, 
on  the  first  rule  day  after  special  bail  is  entered  and  perfected;  where  the 
defendant  is  in  custody,  on  the  first  rule  day  after  he  is  so  returned,  or  es- 
tering  a  committitur  or  waiver  of  bail,  where  the  first  process  in  the  action 
is  a  summons  and  no  bail  is  ordered,  the  declaration  must  be  filed  on  the 
fiist  rule  day  after  the  return  of  the  process  served. 

a.  The  defendant  shall  file  his  plea  on  the  first  rule  day  after  the  plain- 
tiff has  filed  his  declaration.     The  plaintiff  shall  reply  on  the  next  rule  day 
if  a  replication  is  necessary,  and  so  the  parties  shall  continue  to  answer 
each  oJier  each  succeeding  rule  day,  until  issue  is  joined. 
f^'^  .^.  ;3^ he  clerk  shall  endorse  on  each  declaration,  plea,  &c.  filed,  the  time 
' -^'gjf  iiling  and  insert  the  same  in  liis  rule  docket,  at  the  time  of  filing.     If 
.  J"  'Itdtberpairty  ehall  make  default  by  not  declaring  or  pleading,  &c,  according 
to  tJie  alM»ve.{i}'lee,  the  clerk  shall  enter  the  default  at  the  time  it  takes  place 


RULES  OF  PRACTICE.  409 

in  his  rule  docket:  He  shall  enter  it  also  on  his  continuance  docket  for  the 
term  next  after. 

5.  On  calling  the  docket  at  the  term  next  after  the  defaulthas  taken  place, 
the  default  will  be  confirmed,  unless  the  party  in  default  on  motion,  and 
showing  cause,  obtain  leave  of  the  Court  to  declare  or  plead,  &;c.  on  terms, 
such  as  the  nature  of  the  case  may  require. 

6.  A  default  entt-red  against  a  defendant  for  not  filing  his  plea  on  the 
rule  day  next  afterfiling  oftiie  delaration  will  be  set  nside,  only,  on  the  de- 
fendant, on  motion  and  satisfying  the  Court  by  atfulavit  or  otherwise,  that 
he  has  merits,  paying  costs  instantly  filing  an  issueable  plea,  receiving  a 
replication,  A:c.  so  as  to  place  the  cause  at  issue,  and  going  to  trial,  at  the 
time  the  cause  would  have  been  tried  had  the  issue  been  made  up  at  the 
time  the  default  took  place,  if  the  plainlitf  requests  it;  but  the  defendant 
shall  not  be  compelled  to  try  the  cause,  if  he  shows  such  cause  for  a  contin- 
uance as  the  Court  would  require  for  its  continuance,  had  the  issue  been 
made  up  when  the  default  took  place. 

7.  A  ilefault  for  a  plea,  &c.  on  either  of  the  last  twelve  days  of  a  vaca- 
tion shall  be  noticed  by  the  clerk  on  his  docket  as  others,  and  be  set  aside 
on  the  same  terms. 

8.  The  plaintiiF  who  on  motion  obtains  leave  to  withdraw  his  declara- 
tion and  declare  again,  shall  pay  the  costs  of  filing  the  declaration  with- 
drawn, and  subsequent,  until  filing  the  new  declaration.  If  a  plaintiff 
on  motion  and  leave  ofthe  Court  add  a  count  or  counts  to  his  declaration, 
or  otherwise  materially  amend  it,  he  shall  pay  costs  such  as  the  Court  shall 
order.  The  plaintiff  shall  instantly  file  his  new  declaration,  or  make  his 
amendment,  and  join  issue,  if  the  cause  was  at  issue  before  the  declara- 
tion was  withdrawn  or  amended.  If  tbe  defendant  requires  time  to 
plead,  the  cause  shall  be  placed  on  the  rule  docket,  and  the  issue  then  be 
made  up  by  the  defendant's  filing  his  plea  the  first  rule  day,  the  plaintiff  the 
next,  &;c.     If  the  issue  is  immediately  made  up  and  the  defendant  requires 

>a  trial,  the  cause  shall  be  tried  at  the  term  it  would  have  been  tried,  had 
no  amendment  been  made  in  the  pleadings,  unless  on  good  cause  shown 
and  on  payment  ofthe  costs  by  the  plaintiff,  the  court  continues  the  cause. 
This  rule  will  govern  in  withdrawing  or  materially  amending  any  other 
pleading  of  the  plaintifl".  After  a  cause  is  continued,  leave  to  amend  by 
the  plaintiff  will  be  granted  on  terms  other  than  the  foregoing  such  as  shall 
appear  to  the  Court  just. 

9.  The  defendant,  who  on  motion  obtains  leave  to  withdraw  a  plea 
and  plead  again,  or  to  add  a  plea  or  notice  of  offset,  or  materially  to  amend 
a  plea  or  notice,  shall  pay  costs,  instantly  file  his  plea,  notice,  or  amend- 
ment, receive  a  replication,  &c.,  so  as  to  make  up  the  issue.  If  the  plea 
requires  a  replication,  and  the  plaintiff  wishes  time  to  reply,  the  cause 
shall  be  placed  on  the  rule  docket  the  plaintiff  sliall  reply  on  the  first  rule 
day  after,  the  defendant  on  the  next.  Sec.  If  the  plaintiff  does  not  require 
time  to  plead,  and  the  issue  is  immediately  made  up,  and  theplaintiff  wishes 
to  try  the  cause,  it  shall  be  tried  at  the  time  it  would  have  been  tried 
had  no  amendment  been  made,  unless  the  defendant  show  good  cause  to  the 
Court  for  a  continuance. 

10.  Motions  granted  of  course  will  be  heard  at  any  convenient  time,  mo- 
tions granted  on  showing  cause  only,  will  not  be  heard  until  the  reasons 
for  the  motion  signed  by  the  party  or  his  attorney,  and  the  documents  to  be 
used,  have  been  filed  with  the  clerk,  at  least  one  day;  the  documents  to  be 
read  on  the  motion  and  a  motion  in  writing  signed  by  the  party  or  his  at-'- 
torney  and  notice  of  one  day  at  least  has  been  given  to  the  adverse  party  or 
his  attorney  or  reasonable  cause  sliown  for  notfilmg  the  reasons  aud  -doC-^ 
uments  and  giving  such  notice.     On  motions  made  in  a  cau^^n  tfial,  or 


470  RULES  OF  PRACTICE. 

for  a  continuance  of  a  cause,  because  a  necessary  and  expected  witness 
does  not  answer  when  the  cause  is  called  for  trial,  and  others  which  re- 
quire to  be  made  as  soon  as  the  reason  for  making  are  discovered,  to  obtain 
the  benefit  of  them,  no  reasons  or  documents  will  be  required  to  be  filed  or 
notice  given. 

11.  Motions  founded  on  facts  which  are  not  proved  by  the  records  or  files 
of  the  Court,  or  by  written  statements  signed  by  the  parties  their  attor- 
neys, or  other  authentic  documents  must  be  supported  by  affidavit.  No  affi- 
davit will  be  heard  by  the  Court,  except  the  aliidavit  oi  a  party  to  the  mo- 
tion unless  reasonable  notice  has  been  given  to  the  adverse  party  of  the  time 
and  place  of  taking  such  affidavit,  or  sufiicient  cause  shown  for  not  giving 
such  notice,  no  supplementary  affidavits  will  he  heard  by  the  Court. 

12.  On  motion  the  Court  will  hear  but  one  counsel  open  for  the  motion, 
one  against  it,  one  in  reply.  In  an  important  and  difficult  motion  before 
the  argument  commences,  leave  may  be  obtained  to  have  more. 

13.  But  two  counsel  for  a  party  will  be  heard  in  argument  on  the  trial 
of  a  cause,  one  will  open,  two  for  the  other  party  follow,  one  reply;  when 
the  cause  is  important  and  difficult,  leave  may  be  had  of  the  court,  before  the 
argument  commences,  for  more  ihan  two  on  a  side  to  argue. 

14.  The  clerk  on  assigning  the  causes  their  several  days  for  trial  shall 
place  the  state  continuances  on  indictments  first;  then  leave  sufficient  space 
for  the  causes  on  indictments  previously  found  on  which  capiases  have  is- 
sued, and  shall  allow  on  the  first  day  or  days  of  the  term  as  much  time  as 
will  in  his  opinion  be  necessary,  to  try  such  of  the  said  continuances  and  ap- 
pearances as  will  be  tried,  next  to  these,  the  civil  causes  on  the  law  dock- 
et;  next   the  chancery,  &c. 

15.  State  continuances,  will  be  called  and  tried  or  continued  in  the  order 
in  which  they  are  placed  on  the  docket;  on  very  good  cause  shown,  the 
Court  may  order  one  or  more  to  be  put  to  the  end  of  the  jury  causes,  next 
the  appearances  to  indictments  found  at  a  previous  term  will  be  called  tried 
or  continued  unless  on  good  cause  shown,  one  or  more,  siioiild  be  placed  or 
laid  over  to  the  end  of  the  jury  causes,  nexttheCourt  will  call,  try  or  con- 
tinue the  jury  causes  on  the  civil  docket,  then  the  state  causes  laid  over, 
and  the  appearances  to  indictments  found  at  the  same  term;  the  court  v/illthen 
hear  the  arguments,  &c.,  on  tlie  law  docket,  then  the  chancery  causes  for 
hearing,  8ic.,  when  the  business  of  any  term  cannot  all  be  done  at  that 
term,  the  court  will  divide  their  time  in  the  trial  of  the  state,  law  and  chan- 
cery causes  as  the  nature  and  importance  of  the  business  may  require. 

RULES  OF  PRACTICE 

IN    THE 

EIGHTH    CIRCUIT. 

1.  Within  forty  days  after  the  term  at  which  any  Executor,  Adminis- 
trator or  Guardian  may  file  l;is  account  and  vouchers  for  settlement,  the 
Commissioner  of  Administration  sjiall  examune  the  same  and  report  thereon 
a  statement  of  the  account  of  such  Executor,  Administrator  or  Guardian, 
which  report  said  Commissioner  shall  file  in  the  Clerk's  office,  with  the 
vouchers  of  such  administrator,  &c.  and  any  person  interested  conceiving 
himself  aggrieved  by  said  report  of  said -Commissioner  shall  file  his  specific 
exceptions  thereto,  on  or  before  the  third  day  of  the  next  term... 

2.  All  motions  to  extend  the  time  of  settlement  of  any  Executor,  Ad- 
ministratOTjfer  guardian  with  the  Court,  shall  be  predicated  on  a  report  of  the 
C<)mmis£i,oiier  of  Admini-stration  as  to  the  progress  of  such  Administrvator, 


RULES  OF  PRACTICE.  471 

Executor  or  Guardian,  accompanied  with  the  accounts  and  vouchers  of  such 
Executor,  Administrator  or  Guardian,  so  f;ir  as  the  same  has  progressed. 

3.  All  petitions  by  any  Executor,  Administrator  or  Guardian  for  the 
sale  of  real  estate  shall  exhibit  a  report  of  tiie  Commissioner,  of  the  state- 
ment of  the  account  of  such  Executor,  Administrator,  or  Guardian. 

4.  The  report  of  the  Commissioner,  when  no  exceptions  are  filed  thereto, 
shall  be  the  statement  of  the  account  of  such  Executor,  Administrator  or 
Guardian,  upon  which  the  Court  will  striKe  the  balance,  and  proceed  in 
pursuance  of  the  eighth  section  of  the  act  entitled  "An  act  defining  the  du- 
ties of  Executors  and  Administrators." 

RULES  ADOPTED,  MAY  TERM,  1827. 

1.  Declarations  shall  be  filed  within  thirty  days,  after  the  end  of  the  ap- 
peartince  term;  pleas  within  thirty  days  thereafter,  and  every  twenty  days 
thereafter  a  rule  day,  until  issue  joined. 

2.  The  party  in  default,  by  not  complying  with  first  rule,  shall  not  have 
leave  to  plead,  except  upon  payment  of  all  costs  of  the  term,  up  to  that 
time,  and  the  other  party  shall  be  entitled  to  a  continuance  or  not  at  his 
option. 

3.  Notice  of  motion  to  dismiss  appeals  or  mesne  process  for  irregularitj', 
shall  be  given  in  writing  to  the  counsel  of  the  other  party,  or  filed  with  the 
Clerk,  if  there  be  no  counsel;  nor  shall  such  motions  be  heard,  unless  they  be 
made  the  second  day  after  appeals  or  process  may  have  been  filed  with  the 
Clerk,  if  filed  in  term. 

4.  Notice  in  writing  with  the  grounds  thereof  for  new  trial,  or  in  arrest, 
shall  be  filed  with  the  Clerk,  or  served  on  opposite  party,  the  day  on  which 
verdict  is  rendered. 

5.  On  denmrrcr,  and  in  chancery  causes,  the  counsel  shall  furnish  iho 
Court,  twelve  hours  before  the  trial,  with  a  brief  q(  the  points  relied  on,  and 
of  the  authorities, 

6.  Vn  applications  for  injunctions  in  term  time,  notice  in  writing  shall 
be  given  the  opposite  party,  or  his  attorney  of  record  in  the  suit,  sought  to 
be  enjoined,  one  day  before  motion,  if  party  or  attorney  reside  in  county. 

7.  No  motion  shall  be  heard  to  dissolve  injunction,  on  bill  and  answer, 
unless  the  answer  shall  have  been  filed,  and  notice  thereof  given,  at  least 
one  day  before  the  motion,  if  that  time  shall  intervene  after  filing  bill. 

8.  No  exceptions  to  depositions  for  other  causes  than  the  competency  of 
the  witnesses,  or  the  competency  or  relevancy  of  the  testimony,  shall  be 
heard,  unless  the  same  be  reduced  to  writing  and  filed  the  day  before  the 
trial,  or  served  on  the  opposite  counsel,    before  the  cause  is  called  for  trial. 

6.  Tiic  Clerk  shall  at  the  request  of  either  party  npen  depositions  in 
term  time,  thougii  the  Cuurt  may  not  be  in  session,  and  shall  endorse  when 
opened,  and  at  whose  request,  but  shall  not  permit  them  to  be  taken  out  of 
hisoflicc. 

10.  Only  two  counsel  on  a  side,  slnll  be  heard  on  the  trial  of  any  cause 
except  capital  cases,  and  but  one  on  a  question  of  evidence,  motion  for  any 
amendment,  new  trial  or  in  arrest  of  judgment. 

11.  Proof  of  publication  shall  be  by  affidavit,  with  copy  of  notice  at- 
tached. 

12.  When  demurrer  is  sustained,  leave  to  amend  will  only  be  given,  on 
the  payment  of  Clerk's  and  Shcrill'sfees,  and  when  over-ruled;  leave  to  re- 
ply Jkc.  on  same  terms.  l       .     ■  ' 

13.  IJilis  of  exception  shall  be  committed  to  vvritiiig,  at  the  time  tlie  ex- 
ceptions are  taken,  not  after. 


472  RULES  OF  PRACTICE. 

14.  No  motion  for  a  new  trial,  in  arrest,  to  amend  or  for  a  rehearing, 
of  any  matter  once  heard  during  the  term,  shall  be  heard  after  the  President 
Judge  has  left  the  Court. 


RULES  OF  PRACTICE 

IN  THE 

COURT  OF   COMMON   PLEAS   OF   HAMILTON  COUNTY, 

ADOPTED  FEBRUARY  TER3I,  1833. 

1.  The  second  Monday  after  the  close  of  each  term  of  this  Court  for  civil 
business,  excluding  the  day  of  adjournment,  and  every  alternate  Monday 
thereafter,  until  notice  day  of  the  next  ensuing  civil  term,  excluding  notice 
day,  shall  be  rule  days,  on  which,  after  return  day  of  process;  declarations, 
and  all  other  pleadings  at  law,  and  assignments  of  errors,  may  be  filed,  and 
rules  for  declaration,  plea,  or  any  other  pleadings  in  a  cause,  or  for  assign- 
ment of  errors,  may  be  entered,  to  expire  on  the  next  succeeding  rule  day. 

2.  Declarations  may  be  filed  in  vacation,  notwithstandinq;  a  default  and 
rules  taken  thereon,  at  any  such  time  that  two  rule  days  will  intervene  be- 
tween the  rule  day  of  filing  and  notice  day  of  the  next  ensuing  civil  term; 
and  when  the  declaration  is  filed  in  term  time,  rules  may  be  taken  at  the  fil- 
ing, to  plead  thereto  by  the  first  rule  day  after  the  term. 

3.  For  all  pleadings  in  a  cause,  subsequent  to  the  plea  to  the  plaintiff's 
declaration,  every  Monday  in  vacation,  after  the  day  on  which  a  default 
would  accrue  in  the  cause,  shall  be  considered  as  a  rule  day. 

4.  All  pleadings  filed  or  rules  entered  in  the  interval  between  two  rule 
days,  shall  be  considered  as  filed  or  entered  on  the  rule  day  next  succeeding 
the  day  of  filing  or  entry,  except  when  filed  in  term  time. 

5.  All  rules  and  office  judgments  shall  be  entered  on  the  docket  by  the 
clerk,  with  the  date  of  the  entry. 

6.  That  in  any  case  wherein  an  executor  or  administrator  shall  become  a 
party  to  the  suit  commenced  by  or  against  the  testator  or  intestate,  accord- 
ing to  the  provisions  of  the  statute  in  such  cases,  it  shall  not  be  necessary 
where  declarations  shall  have  been  filed,  to  file  anew  declaration,  or  amend 
the  original,  but  it  may  be  done  on  motion;  and  the  executor  or  adminis- 
trator becoming  party  defendant  to  such  suit,  may,  on  motion,  change  or 
amend  the  plea  or  pleas,  or  proceed  upon  those  already  filed:  and  in  either 
case,  no  interlocutory  costs  shall  be  charged  to  sither  party. 

7.  In  case  either  party  neglects  to  file  the  proper  pleadings  within  the- 
time  he  is  ruled  to  do,  an  office  judgment  may  be  entered  in  term  time,  as 
"well  as  in  vacation,  on  the  proper  docket.  But  until  such  office  judgment 
be  entered,  the  opposite  party  may  file  the  requisite  pleading,  and  save  his 
default,  and  rules  thereon  may  be  taken  as  in  other  cases. 

8.  OtRce  judgments  shall  be  affirmed  of  course,  and  damages  thereon  as- 
sessed, whenever  they  are  first  regularly  called  upon  the  issue  docket;  but 
until  so  affirmed  they  shall  be  opened  on  motion,  and  on  the  terms,  that  the 
pleading  for  the  want  of  which  such  office  judgment  was  signed,  be  filed,  and 
the  cause  put  at  issue  iastanler,  and  the  cause  shall  stand  for  trial  at  the 
current  terra;  except  that  the  party  in  whose  favor  such  office  judgment  was 
signed,  may  continue  the  cause  at  the  costs  of  the  opposite  party,  provided 

^he  shall  elecjt  to  continue,  or  try,  within  twenty-four  hours  after  the  filing 
'of  the  deferje4  pjeading;  and  if  he  elects  to  try,  he  shall  also  have  the  right 
'  ,-*fcea  to  elect*  whether  he  will  try  th^,  cause  in  its  order  on  the  docket,  or 


RULES  OF  PRACTICE.  473 

place  it  at  the  heel  of  the  docket.  But  in  actions  of  assumpsit  and  debt 
founded  on  promissory  notes,  due-bills,  drafts,  bills  of  exchange,  bonds,  and 
other  contracts  for  the  payment  of  a  sum  of  money  certain,  and  on  the  com- 
mon money  counts,  sucii  default  shall  not  he  opened,  unless  the  defendant 
or  his  agent  shall  file  an  affidavit  of  a  mniitorious  defence,  or  in  case  of  their 
absence,  a  professional  statement  of  the  attorney  in  the  cause  of  such  de- 
fence. 

9.  Judgments  will  bs  entered  of  course,  upon  verdicts  at  the  time  they 
are  rendered,  unless  notice  be  given  of  a  motion  for  a  new  trial,  or  in  arrest 
ofjudginent. 

'10.  In  cases  of  scire  facias  to  revive  judgments,  and  on  tran'5cript  from 
Justices  of  the  Peace,  to  make  lands  liable,  short  rales  to  plead  within  the 
term,  may  be  taken  by  order  of  the  Court,  and  judgment  thereon  may  be 
entered  by  default  at  the  same  term,  unless  an  affidavit  of  a  meritorious 
defence  be  filed. 

11.  All  judgments  are  to  be  considered  as  bearing  interest  from  the  first 
day  of  the  term,  and  interest  to  the  first  day  of  the  term  only,  to  be  included 
in  the  computation. 

12.  All  indictments  shall  be  considered  for  trial  at  the  term  at  which  they 
are  found,  and  shall  be  entered  on  the  criminal  docket  in  their  order,  as  re- 
turned by  the  grand  jury,  and  shall  be  called  nod  tried  in  the  same  order  as 
entered  upon  the  said  docket;  excepting  capital  or  penitentiary  cases,  which 
may,  by  co'iricnt  of  counsel,  bn  assigned  for  particular  days;  and  excepting, 
also,  such  cases  as  the  Court  may  consider,  from  peculiar  or  extraordinary 
circumstances,  may  be  entitled,  to  a  transposition  on  the  docket,  or  to  the  as- 
signment of  a  particular  day  for  trial,  in  which  cases,  on  motion  and  a  state- 
ment in  writing,  the  Court  will  make  such  order  as  shall  seem  meet  and 
just:  Provided,  the  trial  of  au}"^  indictment  may  be  continued  or  placed  at 
the  heel  of  the  docket,  on  the  same  principle,  and  for  the  like  reason  as  in 
civil  cases. 

13.  All  criminal  cases  which  shall  have  been  continued  from  a  previous 
term,  and  are  for  trial,  shall  he  assigned  by  the  Clerk  fi)r  trial  on  the  first 
days  of  the  term,  in  the  same  manner  that  civil  causes  are  assigned;  and 
eubpoDiias  and  other  process  therein  shall  issue,  and  be  made  returnable  ac- 
cordingly. 

14.  All  motions  for  continuances  shall  be  in  writing,  accompanied  by  a 
statement  of  the  facts  upon  which  each  motion  is  founded,  verified  by  oath, 
unless  the  facts  are  of  record,  or  otherwise  appear  on  paper,  in  the  cause; 
and  each  motion  shall  be  made  as  early  as  the  day  on  which  the  cause  is  set 
for  trial,  and  not  after;  unlaws  the  c  luso  of  such  motion  arose  subsequent  to 
that  day,  which  facl  sliaJU-^e  stated  in  the  affidavit  accompanying  the  mo- 
tion, or  other  good  cause  be  shown  for  not  making  the  motion  earlier. 

1.5.  Wh'^n  a  motion  is  made  for  a  continuance  of  a  cause,  a  second  time, 
on  account  of  the  absence  of  any  witness,  the  aflidavit  shall  state  the  sub- 
stance of  what  the  party  expects  to  prove  by  such  witness. 

IG.  \Vlicn  a  motion  is  made  fur  the  continuance  of  a  cause  on  account  of 
an  absent  witness,  or  want  of  papers  or  other  evidence,  if  the  opposite  party 
will  admit  in  writing  the  facts  expected  to  be  proved  by  the  absent  witness, 
papers,  or  otiier  evidence,  the  cause  shall  proceed  to  trial  on  such  admission. 

17.  All  motions  to  continue  causes;  to  set  aside  office  judgments;  to  ap- 
point aduiinistrators  and  guardians;  to  remove  a  cause  out  of  its  place  on 
the  docket;  to  as>ign  a  cause  for  trial  on  any  particular  day,  shall  be  sub- 
mitted, with  the  grounds  thereof,  in  wriiin"',  and  decided  without  argument. 

18.  All  causes  and  matters  ponding  in  Uonrt  p,t  any  term,  and  not  other-- 
wise  disposed  of,  will  stand  continued  of  (Joursc,  and  continuances  may  be 
entered  on  the  record,  at  any  time,  by  the  Clcik. 

L  L  L      "' 


474  RULES  OF  PRACTICE. 

DEPOSITIONS. 


19.  Afler  process  served  in  any  cause,  either  party  may  take  out  a  dedi- 

mus  potestatein,  to  take  ihe  depositions  of  absent,  going,  or  infirm  witnesses, 
directed  to  any  oiliccr  or  person  authorized  by  the  laws  of  this  State  to  take 
depositions,  or  to  such  person  or  persons,  as  tlie  parties  may,  by  writing, 
agree  upon; — to  which  dedimus  shall  be  attached  the  interrogatories  to  be 
put  to  the  witnesses. 

20.  That  the  party  wishing  to  take  the  depositions,  shall  file  his  inter- 
rogatories with  the  Clerk  of  the  Court,  and  give  notice  thereof  to  the  oppo- 
site party,  or  his  attorney,  whr)  shall  have  live  days  to  file  cross-interroga- 
tories; at  the  expiration  of  which  period,  the  Clerk  shall  issue  the  dedimus 
at  the  request  of  either  party:  Provided,  that  if  upon  the  filing  of  the  cross- 
interrogatories,  the  other  party  shall  wish  to  file  additional  interrogatories, 
he  may  do  so,  giving  notice,  and  waiting  for  cross-interrogatories,  as  be- 
fore. But  these  rules  si.all  not  interfere  with  the  right  of  parties  to  take 
depositions  on  notice  merely,  without  a  dedimus;  and  where  cross-inter- 
rogatories are  filed,  notice  of  the  time  and  place  of  taking  depositions  un- 
der a  dedimus,  shall  be  considered  as  waived  thereby,  and  need  not  be  given. 

21.  That  depositions  may,  upon  request  of  either  party,  be  opened  at  any 
time  by  the  Clerk  in  his  oiice,  or  in  Court,  he  taking  care  to  endorse  on  the 
deposition,  when  and  by  whom  opened. 

22.  That  no  exceptions  to  depos-tions  for  "other  causes  than  the  compe- 
tency of  the  witness,  or  the  competency  or  relevancy  of  the  testimony, 
shall  be  heard,  unless  the  same  be  made  in  writing,  and  notice  thereof  given 
to  the  opposite  counsel,  before  th^  cause  is  called  for  trial. 

23.  Tbat  a  notice  to  take  a  deposition,  served  on  the  attorney,  on  a  day 
in  term  time,  shall  not  be  considered  as  a  reasonable  notice;  but  notice  to 
the  party  may  be  given,  in  term  time. 

24.  That  after  a  deposition  has  been  returned  to  the  Clerk  of  the  Court, 
the  party  taking  it,  sliall  not  have  liberty  to  withdraw  it;  but  the  opposite 
party  may  use  it  on  the  trial,  provided  the  testimony  be  in  itself  legal  and 
proper. 

MOTIONS. 

25.  That  all  motions  to  set  aside  executions,  levies,  appraisements,  or 
sales;  to  set  aside  judgments  or  other  proceedings  for  irregularity;  to  set 
aside  non-suits  or  judgments  entered  on  default;  to  make  entries  in  journal, 
nunc  pro  tunc,  or  for  amending  journal  entries  after  the  term  in  which  they 
are  entered;  for  new  trials,  or  in  arrest  of  judgment;  for  quashing  appeals; 
for  changing  venue;  to  sot  aside  awards;  for  attachments;  applications  for 
the  allowance  of  writs  of  certiorari  and  habeas  corpus;  motions  for  taxation 
or  retaxation  of  costs;  and  for  the  consolidation  of  actions;  shall  be  made  in 
writing  setting  forth  the  grounds  of  such  motion,  and  the  testimony  in  sup- 
port of,  or  against  such  motion,  if  not  of  record  or  on  file,  shall  be  reduced 
to  writing,  and  filed;  and  when  the  proceeding  is  not  in  its  nature  exparte, 
and  not  arising  in  a  docketed  cause,  the  opposite  pnrty  or  his  counsel  shall 

,lmve  twenty-four  hours'  notice;  and  a  docket  shall  be  kept  by  the  Clerk,  on 
•  AVh veil  all  motiotn*,  not  exparte.  and  not  arising  at  the  calling  of  a  docketed 
•'cau's^  shall>be^entfei'ed.         '  \":''- 
■  j-*JGCj.:Th41:>mtiJii^to  amerce  Sheriffs  shall  be  in  writing,  setting  out  the 

"cause  of  aragrcement;  and  the  evidence  on  both  sides,  if  not  of  record,  or 
,ron  the  files  of  thei  Court,  shall  be  taken  in  writing  under  the  same  rules  and 
'  regpilationa  that  evidence  in  Chancery  cases  is  taken. 


RULES  OF  PRACTICE.  475 

27.  That  all  applications  for  the  removal  of  executors,  administrators, 
or  guardians,  shall  be  by  petition  in  writing,  setting  forth  the  causes  of  com- 
plaint; and  notice  of  the  application  with  a  copy  of  tlie  causes  of  complaint, 
shall  be  served  on  the  defendant  in  the  petition,  at  least  ten  days  before  the 
application  is  made;  and  the  evidence  shall  be  reduced  to  writing,  as  in  case 
of  motions  for  amercement. 

AMENDMENTS. 

28.  That  all  pleadings  on  the  law  side  of  the  Court  may  be  amended  on 
application  to  the  Clerk  in  vacation  before  office  judgment,  of  course;  the 
other  party's  costs  accrued  since  filing  the  defective  pleading  being  first 
paid;  and  rules  may  be  entered  upon  such  amended  pleading  as  in  other 
cases  of  pleadings  filed;  but  if  the  opposite  party  i^lia  11  have  replied  to  such 
defective  pleading,  or  taken  a  copy  thereof,  belbre  the  amendment,  notice 
of  the  amendment  shall  be  served  on  him,  and  the  rule  shall  take  efiect  from 
the  rule  day  on  whicli,  or  next  after  which,  such  service  is  made. 

29.  On  opening  defaults,  or  setting  aside  judgments  in  actions  of  assump- 
sit, leave  to  plead  issuably  will  not  be  granted,  except  on  a  statement  in 
writing,  of  the  purport  of  the  pleas  intended  to  be  filed,  that  the  Court  may 
judge  of  the  necessity  and  propriety  of  granting  the  leave. 

30.  That  if  any  pleading  be  amended  after  subsequent  pleadings  are  filed, 
the  otlier  party  shall  have  a  right  to  answer  the  amended  pleading  anew; 
but  if  he  does  not  uithin  the  rule  plead  anew,  he  slialL  be  understood  to 
abide  by  his  fi)rmer  plea. 

31.  Pleas  that  are  niei-e  nullities  or  palpably  double,  and  all  pleas  which 
are  special  in  form,  but  amount  in  substance  to  the  general  issue;  and  all 
pleas  pleaded  with  the  general  issue,  but  which  contain  matters  properly 
available  in  evidence  under  the  general  issue,  may,  on  motion,  be  stricken 
out. 

32.  That  in  no  case  where  pleadings  are  amended,  shall  the  original 
pleadings  be  withdrawn  from  the  files,  and  no  part  shall  be  so  obliteratail  as 
to  render  the  same  illegible,  and  the  Clerk  by  some  memorandum  entry, 
shall  show  wiiat  the  amendment  is. 

33.  Tliat  wiien  amendments  are  allowed  in  any  case  in  term  time,  by  or- 
der of  the  Court,  at  the  costs  of  the  party  amending,  he  shall  be  required  to 
pay  the  costs  of  the  amendment  within  thirty  days  tliereafter,  and  if  such 
costs  are  not  paid  in  tliat  time,  the  other  party  may,  upon  application  to 
the  Court,  enforce  payment  by  attachment.  Wlien  leave  is  granted  to 
amend  pleadings  on  ])ayment  of  costs,  it  is  to  be  understood  that  the  costs 
accrued  since  filing  the  defective  pleading,  are  to  be  i)iiid,  unless  the  Court 
shall  otherwise  direct:  but  mere  clerical  errors  will  be  amended  without 
costs. 

34.  That  when  parties  except  to  any  order,  opinion,  or  judgment  of  the 
court,  a  memorandum  in  writing  of  tiie  particular  onler,  opinion,  or  judg- 
ment excepted  to,  shall  be  made  by  tlie  counsel  excepting,  at  the  time  the 
order  is  made,  oroi)ini()n  or  judgment  pronounced,  and  given  to  the  Court 
during  trial,  or  immediately  thereafter. 

35.  All  matters  that  are  in  bar  of  the  plaintiff's  right  of  action  which 
may  aiise  after  suit  brought,  may  be  pleaded  as  rising  since  tlic  commcnce- 
mentof  the  suit  in  bar  of  the  further  i)rosecution  thereof,  without  i)ursuiDg 
in  any  case  the  form  of  picas  i)leaded  puis  darreui,  couiijiuanct;  but  guch. 
plea  shall  be  verified  by  afiidavit,  cxccpt.the  maUW  tlif  leof' be  ©f  record,  of 
law,  or  witliin  the  knowledge  of  the  Court*         «  U.  -U  ..    ■    - .  ^ 


470  RULES  OF  PRACTICE. 

3G.  That  in  all  interlocutory  questions,  only  one  counsel  shall  be  heard 
upon  a  side;  but  one  counsel  on  a  side  shall  examine  a  witness;  and  but  two 
counsel  shiill  be  heard  for  the  same  party  upon  trial  of  any  cause,  except  ia 
cases  for  capital  oO'ences  or  with  the  special  permission  of  Court. 

37.  That  all  civil  causes  for  jury  shall  be  called  on  for  trial  in  the  order  in 
which  they  stand  in  the  issue  docket,  and  shall  be  tried  when  called  on  to  tri- 
al, unless  continued,  or  by  consent  of  both  parties  put  at  the  heel  of  the  dock- 
et; and  criminal  causes  shall  be  subject  to  the  same  rule,  except  that  the 
Court  will,  when  convenience  requires  it,  assign  a  day  for  the  trial  of  capi- 
tal or  penitentiary  causes. 

38.  If  a  case,  when  called  for  trial  in  its  regular  order,  is  not  ready  for 
trial,  or  ready  for  other  disposition  according  to  rules,  the  Court  will  or- 
der it  continued,  as  a  matter  of  course,  or  stricken  from  the  docket,  unless 
good  cause  be  shown  to  the  contrary. 

.  39.  Demurrers  may  be  taken  up  by  either  party  before  they  are  reached 
on  the  docket,  by  consent,  or  on  twenty  four  hours  notice  to  the  opposite 
party,  and  if  not  previously  disposed  of,  shall  be  heard  in  their  order  on  the 
docket;  if  the  cause  stands  on  demurrer  only,  and  the  demurrer  is  with- 
drawn or  over-ruled,  judgment  shall  bo  entered  of  course  against  the  party 
demurring,  unless  he  shall  show  good  cause  to  the  Court  for  leave  to  file 
other  pleadings,  and  if  such  leave  is  given,  the  cause  will  be  remanded  to 
rules,  to  be  proceeded  in  as  other  cases,  unless  the  court  otherwise  direct. 

40.  If  tliere  be  an  issue  both  of  law  and  fact  in  the  same  cause,  both 
shall  be  considered  as  standing  for  trial  at  the  same  term. 

41.  In  any  pleading,  where  profert  is  made  of  a  sealed  instrument,  a  copy 
thereof  shall  be  filed  with  the  pleadings,  before  rule  thereon,  but  it  shall 
not  be  necessary  to  set  forth  the  instrument  at  length  in  the  body  of  the 
pleading;  nor  shall  it  be  required  to  set  forth  the  instrument  at  length,  on 
craving  oyer,  when  a  copy  thereof  appears  in  the  pleadings. 

42.  That  proof  of  publications  required  by  law,  and  notices  shall  in  all 
cases  be  by  afiidavit,  with  a  copy  of  the  publication  or  notice  attached;  all 
of  which  shall  be  filed  with  the  clerk. 

43.  Judgments  by  confession  may  be  entered  up  at  any  time  during  the 
term  by  the  clerk,  on  declaration  being  filed,  without  application  to  the 
court,  the  warrant  of  an  attorney,  when  the  conf<;ssion  is  by  attorney 
or  a  copy  thereof  being  first  filed  with  an  affidavit  of  an  execution  of  the 
warrant. 

EJECTMENT. 

44.  That  in  ejectment  cnuses,  the  copy  of  the  declaration  served  on  ten- 
ant in  possession,  shall  be  filed  in  court,  and  shall  be  the  declaration  on 
which  the  cause  shall  proceed,  and  an  amendment  of  it,  as  to  the  name  of 
the  defendant  shall  not  be  necessary. 

45.  That  when  any  person  is  made  defendant  in  the  room  of  the  casual 
ejector,  he  shall  file  a  written  confession  of  lease,  entry  and  ouster,  and  that 
he  is  in  possession  of  the  premises,  or  that  part  of  them  which  he  defends; 
and  in  case  he  does  not  dei'end  for  the  whole;  a  particular  statement  of  the 
part  for  which  he  does  defend,  together  with  his  plea  of  not  guilty;  provi- 
ded that  when  one  tenant  in  common  is  sued  by  his  co-tenant,  he  shall  not 
be  obliged  to  confess  ouster. 


RULES  OF  PRACTICE.  477 

46.  That  in  proceeding  under  the  last  rule,  the  following  form  shall  be 
deemed  sutiicient. 

ss.     John  Doe,         ] 

on  demise  of  A.  B.        | 

vx.  J> 

C.  D.  (adding  other        j 

defend'ts  if  necessary.)  J 

E.  F.,  who  is  by  the  court  now  admitted  to  defend  the  trespass  and  eject- 
ment complainedof  in  the  plaintin''s  declaration, (or  if  lie  defends  for  only  apart 
of  the  premises — say  the  trespass  and  ejectment  as  to  a  part  of  the  prem- 
ises described  in  plainti/f's  declaration,  to  wit:  here  describe  particular- 
ly the  premises  for  which  the  defendant  defends,)  comes  into  court  by  I.  F., 
his  attorney,  and  confesses  ihe  lease,  entry,  and  ouster  in  the  declaration 
supposed,  and  that  he  is  in  possession  of  said  premises,  (adding  if  he  de- 
fends for  part  only,)  as  to  which  he  is  made  defendant.  And  the  said  E. 
F.,  by  his  attorney,  says  he  is  not  guilty  in  manner  and  form  ss  the  said 
plaintiff  has  declared  against  him,  and  of  this  he  puts  himself  upon  the 
country — and  tiie  plaintitF  doth  the  like. 

47.  That  the  defendant  in  ejectment  may  before  plea,  &c.  or  afterwards, 
if  it  is  necessary,  by  HOtice  in  writing,  served  on  the  plaintiff  or  his  attor- 
ney, require  the  plaintiff  to  specify  in  writing,  the  lands  which  he  means 
to  proceed  for  ;  and  after  such  notice  given,  no  further  proceedings  on  the 
part  of  the  plaintiff  shall  be  had  until  such  specification  be  furnished  to 
the  defendant's  attorney. 

48.  The  plaintiff  in  ejectment  may  enter  up  juf'gment  by  default  against 
the  casual  ejector  at  any  time  after  the  second  day  of  the  appearance  term, 
on  affidavit  of  due  service  of  the  declaration,  ten  days  before  the  term  ; 
but  such  judgment  shall  be  liable  to  be  set  aside  of  course,  on  filing  the 
consent  rule  and  plea,  at  any  time  during  the  term  to  which  the  tenant  has 
notice  to  appear,  but  not  after. 

49.  That  in  cases  of  certiorari,  issued  from  this  court,  directed  to  two 
justices  of  tlie  peace,  acting  under  the  act  against  forcible  entry  and  de- 
tainer, or  to  one  jm;tice,  acting  under  tlie  bastardy  act,  the  same  notice 
shall  be  given  as  is  provided  by  law  in  other  cases  of  certiorari  directed  to 
justices. 

50.  That  no  person  except  a  judge  of  the  court  be  permitted  to  take  pa- 
pers from  the  files  of  the  court ;  but  in  all  cases  the  parties  or  their  coun- 
sel shall  be  entitled  to  have  copies  of  his  adversary's  pleadings  and  doc- 
uments therein  referred  to,  the  expense  of  which  shall  be  charged  in  the 
bill  of  costs :  Hut  costs  shall  not  be  taxed  for  more  than  one  copy  furnish- 
ed to  the  same  attorney  and  for  the  same  individual  party. 

ADMINISTRATION. 

.51.  Letters  of  administration  will  be  granted  to  none  except  the  next  of 
kin  to  tiie  intestate,  unless  notice  to  all  the  next  of  kin  and  interested,  to  ad- 
minister, Avithin  tiic  county,  be  given  of  the  intended  application,  and  proof 
thereof  nuulc  by  afhdavit,  or  a  written  declaration  of  the  next  of  kin  be 
produced  and  filed,  or  the  ajiplicant  files  his  athdavit  that  there  is  no  one 
one  of  kin  in  the  county,  as  lie  believes. 

52.  The  court  shall  appoint  a  master  conimisfiioner  of  probate,  to  serve 
as  such  during  the  pleasure  of  the  coufl/Vho  Bnail  take  an  oath  faithfully 
and  impartially  to  discharge  bis  duties:  and  whose  duty  it  shall  be  to  ex-, 
amine  and  report  upon  all  accounts  of  executors,  adminietrators  and  guar- 


478  RULES  OF  PllACTICE. 

dians,  and  discharge  such  other  duties  pertaininfj  tothe  settlement  of  the  es- 
tates of  deceased  persons  as  mny  be  required  by  law  or  order  of  the  court,  and 
ehall  receive  such  compeneation  forliis  services  in  each  case,  as  other  offi- 
cers are  entitled  to  for  like  or  analogous  services,  or  as  the  court  may  al- 
low in  each  particular  case. 

5.3.  That  the  administration  account,  in  all  cases,  and  in  case  of  insol- 
vent estates,  the  account  of  the  last  sickness  and  funeral  expenses  shall 
be  kept  distinct,  and  form  items  in  the  general  account, 

54.  That  all  accounts  of  administrators,  or  guardians,  which  have  been 
submitted  to  the  court,  and  have  not  been  actcil  upon,  and  all  accounts  as 
aforesaid  which  shall  be  submitted  to  the  court  or  filed  with  the  clerk,  be 
referred  to  the  master  commissioner  of  probate,  who  shall  report  thereon 
to  this  court,  as  soon  as  convenient  ;  which  report  shall  state  the  amount 
of  moneys  on  hand  at  the  time  of  the  death,  the  amount  received  from 
sales  of  personal  estate,  also  the  amount  received  from  sales  of  real 
estate,  if  any  ;  amounts  of  debts,  collected  and  uncollected  ;  stating  par- 
ticularly for  what  time  and  upon  what  sums  such  interest  is  charged  ;  also, 
amount  of  debts  paid  ;  expenses  of  last  sickness,  where  estate  is  insolvent, 
and  the  amount  of  costs  of  administration  and  funeral  expenses;  and  if  the 
master,  upon  examination,  shall  report  unfavorably  to  any  part  of  the  ac- 
count, he  shall  state  his  reason  for  so  doing;  and  when  accounts  are  repor- 
ted to  the  court  oy  the  master  for  allowance,  such  allowance  shall  be  en- 
tered of  course,  vn  the  journals,  specifying  the  gross  amount  allowed,  and 
distinguishing  privileged  claims  and  special  liens  from  general  claims,  and 
such  accounts  Vvill  of  couise,  stand  open  for  exceptions  till  ihe  ensuing 
term,  which  exceptions  shall  be  filed  in  writing  with  tlic  clerk  before  the 
end  of  the  ensuing  term. 

55.  The  master,  in  examining  the  accounts,  may  take  the  affidavit  of  the 
executor,  administrator  or  guardian,  if  he  think  proper,  and  such  other 
legal  evidence  as  may  be  offered,  all  of  which  shall  be  reduced  to  writing, 
and  returned  to  court  with  the  papers. 

5(5.  Petitions  by  executors,  administrators,  or  guardians,  for  sale  of  lands 
or  any  interest  therein,  may  be  filed  in  term  time  or  vacation,  and  due  notice 
thereof  given  by  a  summons  directed  to  the  sheriff,  or  other  proper  ofhcer, 
returnable  forthwith,  if  issued  in  term,  or  by  other  legal  notice;  and  where 
publication  is  necessary,  it  may  be  made  of  course,  without  an  order  of 
court;  and  notice  not  served  by  an  officer,  shall  be  proved  by  affidavit  with 
a  copy  thereof;  and  such  petitions  shall  be  placed  on  the  issue  docket. 

57  When  application  is  made  to  the  court  for  an  order  of  appraisement 
or  sale  on  such  petition,  a  short  statement  from  the  master  shall  be  ex- 
hibited to  the  court,  showing  the  amountof  the  available  personal  assets,  and 
of  the  assetsarising  from  prior  sales  of  lands,  the  amount  of  claims  against 
the  estate,  and  the  amount  of  debts  against  the  estate  remaining  unpaid, 
and  the  amount  of  bonds  given  by  the  administrator  or  executor. 

58.  For  all  examinations;  allowances,  certificates,  or  other  duties  he 
may  perform,  the  n.asters  shall  be  entitled  to  receive  his  reasonable  fees, 
at  th«  time  of  rendering  the  service,  and  may  retain  his  certificates  of 
statements  until  the  same  be  paid. 

CHANCERY. 

T  59l  That  in  all  cases  ih"chancery',  where  a  defendant  shall  not  file  his 
answef,  plea,  or  demurrer,  witliin  the  tiipe  prescribed  by  law  or  the  rules 
of  the  court,  compiainant  may  file  in  the  clerk's  office  in  term  time  or  va- 
csiion,  a  decree  7usiVupon  the  biiriaken  as  confessed;  which  decree  shall 


RULES  OF  PRACTICE.  479 

of  course  be  made  absolute,  on  motion  in  court,  on  any  day  after  the  se- 
cond day  of  any  term,  and  after  twelve  days  from  the  filing  of  such  de- 
cree 7iisi,  unless  sufficient  cause  be  shown;  provided  that  the  counsel  filing 
the  decree  shall  at  the  same  time  enter  on  the  clerk's  docket  a  memoran- 
dum, dated  and  signed  by  him,  stating  that  bill  is  taken  as  confessed,  and 
decree  nisi  filed;  and  any  |)arty  intending:  to  resist  confirmation  of  such 
decree,  shall  enter  on  the  docket  notice  thereof,  before  confirmation;  and 
where  leave  shall  be  obtained  to  plead,  answer,  or  demur,  after  default, 
the  complainant  shall  have  his  election  to  set  down  the  cause  for  hearing 
at  the  same  term,  and  such  other  terms  shall  be  imposed  as  the  court  shall 
deem  reasonable. 

60.  That  in  case  answer  be  filed,  but  no  exception  or  replication  be  filed 
within  the  time  required  by  law,  or  tlie  rule  of  the  court,  either  party  may 
set  down  the  cause  for  hearing,  upon  bill  and  answer;  and  after  cause  is 
set  down  for  hearing,  as  above,  no  replication  shqjl  be  filed  without  the 
special  leave  of  court,  and  upon  such  terms  as  to  them  seem  proper. 

61.  If  a  cause  in  chancery  be  put  in  issue  on  replication  to  plea  and  an- 
swer, twenty  days  from  filing  the  replication,  shall  be  allowed  to  the  par- 
ties to  take  testimony,  and  testimony  taken  afterwards  shall  not  be  read 
without  the  special  leave  of  the  court;  and  upon  the  expiration  of  the 
twenty  days,  either  party  may  set  down  the  cause  for  hearing;  but  either 
party  may  take  testimony  at  any  time  after  service  of  process  or  notice  in 
the  cause,  or  publication  made;  the  costs  of  depositions  taken  before  issue 
joined,  to  be  paid  by  the  party  taking  them,  unless  they  are  used  at  the  hear- 
ing. 

62.  That  in  cases  when  replication  be  not  put  into  plea,  within  the  time 
allowed,  or  in  case  ©f  demurrer  to  bill,  either  party  may  set  down  the  cause 
for  hearing. 

63  That  a  general  chancery  docket  shall  be  kept  by  the  clerk,  on  which 
causes  shall  be  noted  for  hearing,  decrees  ?ji'si  minuted;  and  other  entries 
made;  and  also  a  chancery  docket,  on  which  all  causes  for  hearing  shall  be 
entered  in  the  order  in  which  they  are  set :  and  causes  shall  be  set  for  hear- 
ing in  the  following  manner;  the  solicitor  setting  the  cause  for  hearing, 
sluill  enter  on  the  docket  of  the  clerk  as  follows  :  "'I'his  cause  is  set  for 
hearing  on  bill  and  answer,"  or  as  the  case  may  be;  which  entry  shall 
be  subscribed  by  tlie  solicitor,  and  be  dated  the  day  on  which  it  is  made. 

64.  That  when  any  bill  or  answer  shill  refer  to  any  paper  or  document 
as  part  thereof,  the  originals  or  copies  must  be  filed  with  the-n,  and  for 
default  thereof,  on  the  part  of  complainant,  the  suit  may  be  dismissed  as 
for  want  of  a  bill,  or  on  the  part  of  defendant,  decree   pro  coiifcsso  signed. 

6.J.  That  in  all  cases  set  for  hearing  upon  bill  and  answer,  or  upon  bill, 
answer,  replication,  and  testimony,  the  complainant's  counsel  shall  pre- 
pare a  brief,  containing  an  abstract  of  the  case,  with  the  points  and  au- 
thority's relied  on,  to  be  presented  to  the  court  on  the  first  day  of  the  term, 
if  set  for  hearing  before  that  day,  otherwise,  on  the  day  of  setting  them 
for  hearing;  and  if  such  brief  be  not  prepared  and  presLMited,  the  cause 
may  eitlicr  be  dismissed  or  continued  at  the  costs  of  the  complainant,  or  his 
counsel,  as  the  court  may  direct- 

66.  After  tlic  expiration  of  the  time  allowed  by  the  statute  for  filing  an 
answer,  plea,  or  demurrer,  farther  time  will  not  be  allowed  by  the  court, 
unless  on  motion  in  writing,  with  an  affidavit,  stating  the  substance  of  a 
meritorious  defence.  '.;     '■  ''t'.  ;  "^       '^^  ':■'■..'' 

67.  On  the  heai^ingof  all  (Jauses  set  forhcarilig  on  bill  and  answer  only, 
all  cxhibita  and  (3ocumcntarjf*cvidbn60  ^liaLl  be  iieard;  a^d  when  a  decreo 
7ii si  is  filed,  and  the  bill  taketi  us  confessed,  it  shall  be  competent  for  th^ 
defendant   to    produce   and  read  his   answer,   or  any    legal    toetimonj, 


480  RULES  OF  PRACTICE. 

which  shall,  however,  be  Eiihjcct  to  all  proper  exceptions,  and  fhall  receive 
weight  only,  as  the  court  shall  think  proper  and  just  under  all  the  circum- 
stances. 

68.  All  causes  on  the  eq'jity  side  of  the  court  which  are  set  for  hearing-, 
twelve  days  before  the  term,  shall  be  put  on  liie  clnnccry  issue  docket;  and 
others  may  be  set  for  hearing  at  any  time  thereafter,  as  well  in  term  lime 
as  in  vacation;  and  Vv'iicn  so  set  for  hearing,  either  party  may  have  the 
cause  placed  at  tlie  heel  of  the  chancery  docket;  and  after  the  expiration 
of  twelve  days  from  the  time  the  cause  is  set  fdr  hearing  and  placed  on  the 
said  issue  docket,  it  shall  be  considered  as  ready  for  hearing,  and  takes  its 
course,    as  other  causes  on  said  docket. 

69.  That  in  all  cases  set  for  hearing  upon  plea  or  demurrer,  or  upon 
plea  and  replication,  the  party  pleading  or  demurring,  shall  prepare'  and  pre- 
sent a  brief,  as  is  required  in  the  sixty-fifth  rule;  and  if  such  brief  be  not 
prepared  and  presented  as  aforesaid,  the  plea  or  demurrer  may  be  over- 
ruled at  the  costs  of  the  counsel  of  the  party  pleading  or  demurring. 

70.  The  causes  on  the  chancery  issue  docket  will  be  called  and  tried  in 
the  order  in  which  iliey  stand  on  the  docket  of  the  court,  unless  for  good 
cause  shown,  a  case  may  be  passed  over  or  continued. 

71.  That  in  the  trial  of  chancery  cases,  the  counsel  furnishing  the 
brief  will  read  the  papers,  (ualesss  this  be  dispensed  with  by  the  court,) 
and  open  the  cause;  the  counsel  for  the  other  party  will  reply,  the  opening 
counsel  will  rejoin,  and  this  will  close  the  discussion;  and  this  rule  will 
be  observed,  whether  the  argument  be  in  writing  or  viva  voce. 

73.  In  docketed  cases  at  law  or  equity,  the  parties  and  their  attorneys 
shall  be  charged  with  a  knowledge  of  the  notice  of  the  tiling  all  pleadings, 
decrees,  papers,  or  motions;  (not  enumerated,)  in  causes  not  docketed,  or 
otherwise  provided  for,  notice  shall  be  given  to  the  opposite  party,  and  all 
others  interested  in  the  matter,  at  last  twenty-four  hours  before  such 
application,   petition,   or  motion  will    be  heard. 

73.  Of  the  assignment  of  a  day  or  time  for  the  trial,  hearing,  arguing  or 
settling  any  cause  or  matter,  each  party  shall  lake  notice  at  his  peril,  unless 
the  court  may  please  otherwise  to  order. 

74.  In  the  computation  of  time,  except  in  cases  provided  for  by  statute 
law,  the  day  on  wliich  a  rule  or  order  is  entered,  or  notice,  declaration,  or- 
der, or  other  pleading  or  rule,  is  served,  shall  be  excluded,  and  the  day  on 
which  the  compliance  therewith  is  required,  shall  be  included,  unless  that 
day  be  on  Sunday,  in  which  case,  Sunday  shall  be  excluded. 

75.  The  power  of  imposing  costs,  where  the  statute  has  made  no  pro- 
vision, being  incident  to  the  equitable  power  of  the  cuurtover  its  suitors,  it 
is  ordered,  that  in  all  cases  of  motions,  applications,  or  petitions  to  the 
court,  where  the  statutes  have  not  provided  for  the  taxation  of  costs,  the 
court  will  order  and  direct  costs  to  be  paid  according  to  equity  and  justice, 
unless  prohibited  by  the  positive  provisions  of  the  law. 

•  76.  When  motions  are  gr.mted  on  the  payment  of  costs,  or  on  the  per- 
formance of  any  condition,  or  costs  are  ordered  to  be  paid  on  any  inciden- 
tal question,  the  costs  shall  be  paid  or  condition  performed,  within  thirty 
days,  unless  otherwise  ordered;  and  on  failure,  the  party  entitled  to  the 
costs,  or  the  performanceof  the  condition,  may  serve  notice  on  the  party  in 
default,  to  appear  in  court  on  a  day  therein  named,  not  earlier  than  ten 
days  from'the  time  of  serving  such  notice,  to  answer  to  a  rule  to  show  cause 
why\tta.chm$nt%hould  not  issue  on  such  ■default;  and  on  proof  of  the  ser- 
vice of  such  notice,  by  affidavit,  and  oiVmotion  in  writln^the  court  will  con- 
sider thereof,  and  grant  an  attachment,  or  dismiss  the  motion,  as  may 
seemjuiEt"aud  right,  and  direct  the  taxation  of  costs  there  on  accordingly. 
77.  When  by  the  terms  of  any  order  of  court,  any  act  is  directed  to  be 


RULES  OF  PRACTICE.  481 

performed  instanter,  it  shall  be  understood  that  the  time  thereby  allowed 
for  performance,  is  twenty  four  hours  from  the  entry  of  the  order. 

78.  Petitioners  for  the  benefit  of  the  act  for  the  relief  of  insolvent  debtors,, 
will  be  required  to  comply  strictly  with  the  provisions  of  that  act;  and  no 
petition  not  presented  or  tiled  on  the  first  or  second  day  of  the  term,  will  be 
subsequently  received,  unless  the  same  be  accomponied  with  an  affidavit,  or 
other  testimony,  containing  "suflicient  cause"  to  excuse  the  delay,  and  to 
permit  such  petition  to  be  filed. 

79.  No  agreement  or  understanding  between  the  parties,  their  attorneys 
or  solicitors,  or  between  them  and  the  officers  of  court,  or  between  any  of 
them,  unless  the  same  be  in  writing,  and  signed  by  the  parties  thereto,  will 
be  enforced,  inquired  into,  or  recognized  by  the  court,  other  than  such  as 
ars  made  in  open  court,  in  any  matter  wliatever,  relating  the  progress, 
management  or  conducting  of  any  business  pending  in  court. 

80.  All  applicitions  to  court  for  licenses  siiall  be  made  in  writing,  and 
the  requisite  proof  shall  be  furnished  by  affidavit. 

81.  If  process  is  returned,  "servi^d,"  in  suits  at  Jaw  or  in  chancery,  com- 
menced by  non-resident  plaintiffs,  the  suit  will  not  be  dismissed  for  want  ot* 
security  for  costs,  without  a  rule  of  court. 

CONTEMPTS. 

82.  In  all  attachments  against  the  officers  of  the  court  or  others,  for' 
contempt,  for  disobedience  of  process,  or  other  cause,  and  on  all  rules  nisi 
for  attachment,  if  the  cause  for  the  attachment,  or  rule  do  not  exist  of  re- 
cord, or  does  notappe.ir  by  the  process  of  court  and  the  return  thereof,  (ex- 
cept in  cases  of  con>,empt,  in  view  of  the  court,)  the  party  applying  for  the 
fule  or  attachment,  shall  lay  the  cause  before  the  court  by  affidavit  and 
motion  in  writing. 

83.  On  the  return  of  the  attachment,  '-served,"  or  proof  of  the  personal 
service  of  the  rule  to  show  cause,  the  party  in  whose  fivorsuch  attachment 
or  rule  issued,  shall  without  delay,  file  interrogatories,  which  the  respon- 
dent shall  answer  on  oath,  in  writing,  inslaater,  unless  the  court  give  fur- 
ther  time,  and  on  failure  to  do  so,  the  coiirt  will  consider  the  charge  or  con- 
tempt as  confessed,  and  proceed  in  their  discretion  to  final  adjudication 
thereon. 

84.  In  all  cises  of  attachment  or  rule  nisi,  as  above,  where  the  person  a- 
gainst  whom  either  shall  issue,  leaves  the  jurisdiction  of  the  court,  or 
evades  the  process  of  the  court  so  that  he  cannot  be  attached  or  served  per- 
sonally witti  notice  jf  such  rule,  the  court  will,  on  due  proof  of  such  abscon- 
ding or  evasion  of  process,  direct  in  their  discretion,  such  publication  to  be 
made  thereon,  or  such  other  course  to  be  pursued  to  consummate  the  action 
of  the  court  therem,a3  shill  be  considered  just  and  proper. 

85.  In  all  cases  of  attachment  for  contempt  or  disolieJience  of  the  pro- 
cess, judgment,  decree,  order  or  rule  of  C'ourt,  wherein  other  testiHiony 
than  the  answer  of  the  respondent  to  the  interrog  itories  to  be  tiled  as  afore- 
said, shall  be  necessary  and  pr()()er,  the  same  shall  be  taken  in  writing,  by 
affidavit  or  depositions,  and  on  due  notice  lo  the  adverse  party,  as  in  adver- 
sary suits  at  law. 

8t5.  The  examination  of  garnishees  in  attachment  cases,  shall  be  by  in- 
terrogatorus  tiled  in  the  cause,  to  which  the  answers  shall  be  filed  in  writ' 
ing,  und.-r  oath. 

87.  Attorneys  of  (his  Court  sliali  not  be  received  as  bail  or  surety,  in 
any  cause  or  matter  in  Court,  except  as  security  for  costs  for  noo-resideat 
plaintiffs  ,  ■     ■ 

M  M  M 


482  RULES  OF  PRACTICE. 

88.  Each  Saturday,  during  term  time,  shall  be  set  apart  to  hear  and  dis- 
pose of  non-enumerated  motions,  which  shall  be  called  in  their  order  on  the 
proper  docket. 

89.  There  shall  be  a  register  or  roll-book,' to  be  kept  by  the  Clerk  at  all 
times  in  his  office,  for  inspection,  in  which  each  member  of  the  Court  and 
Bar  ghall  write  his  name,  in  his  own  proper  hand,  with  the  date  and  place 
of  his  birth,  and  the  location  of  his  office,  or  dwelling,  or  both,  as  he  may 
please;  and  the  members  of  the  Bar  who  are  in  partnership,  shall  also  in- 
sert the  names  of  the  partners  and  the  style  of  the  partnership,  the  date  of 
its  commencement,  and  when  it  expires,  insert  the  day  of  its  dissolution; 
and  as  changes  in  location,  of  office  or  of  partnership,  may  take  place,  each 
shall  note  the  same  in  said  roll-book.  Any  member  of  the  Bar  intentionally 
omitting  to  comply  with  any  of  the  requisitions  of  this  rule,  will  be  deemed 
to  have  committed  a  contempt  of  Court,  and  be  dealt  with  accordingly. 


INDEX. 


ABATEMENT. 

See,  Pleas  and  Pleadings. 
ACTIONS. 

Origin  and  several  kinds  of,  5. 

ADMINISTRATORS. 

Sales  of  real  estate  by,  387.  Form  of  petition,  387.  Ap- 
pointment of  Guardian  ad  litem,  388.  Order  of  appraise- 
ment and  assignment  of  dower,  388.  Report  of  appraise- 
ment and  assignment  of  dower,  388.  Order  of  appraise- 
ment, 389.  ileport  of  appraisement,  389.  Order  of  sale, 
389.  Return  of  sale  made,  390.  Sale  confirmed  and 
deed  ordered,  390.  Form  of  administrator's  deed,  390. 
Allowance  of  further  time  to  administrator,  420.  Final 
settlement  of  administrator's  accounts,  420.  Order  for 
administrator  to  complete  real  contract  of  intestate,  427, 

AFFIDAVITS. 

To  hold  to  bail,  11.  The  like,  by  an  agent,  12.  To  plea 
in  abatement,  38.  To  plea  jjuis  darrien  continuance, 
47.  To  plea  of  the  general  issue,  41.  For  writ  of  re- 
plevin, 125.  For  injunction,  258,  71.  (a).  Against  col- 
lusion in  bill  of  interi)leadcr,  203.  Of  want  of  know- 
ledge of  names  of  delcndants  in  chancery,  250,  n.  (c). 
AUidavit  of  publication,  208,  270.  The  like,  on  sale  by 
Master  Commissioner,  317.  Affidavit  of  merits  for  leave 
to  answer,  277.  To  truth  of  plea  in  chancery,  279. 
To  truth  of  answer,  283.  For  Habeas  Corpus,  339.  For 
writ  of  attachment,  358.  Of  publication  in  partition,  373. 
Of  personal  service  in  partition,  373.  For  continuance, 
400. 

APFEAL. 

From  Common  Pleas  to  Supreme  Court,  when  and  how 
taken,  300.  Form  of  notice,  02,  n.  (h)  307.  Appeal 
bond,  3(53.  Certificate  of  journal  entries  upon  appeal, 
309.  From  Justices  of  the  Peace  to  Common  Pleas,  370. 
See,  Special  Entries,  428. 

APPEARANCE. 

What  and  how  ciTectcid,  18.  Cures  cAjrs"  Und  defects 
in  process,  18.    In  Chancery,  272. 


484  INDEX. 

ASSUMPSIT. 

Origin  of  action,  5.  How  commenced,  7.  Praecipe  for 
summons  in,  8.  For  capias,  11.  Declarations  in.  See, 
Declarations.     Complete  record  in,  72. 

ATTACHMENT. 

Pra3cipc  and  affidavit  for  writ  of,  358.  Form  of  writ, 
359.  Inventory  and  appraisement,  300.  Sheriff's  re- 
turn, 360.  Bond  to  Sherifi'  upon  redelivery  of  the  pro- 
perty, 3G1.  Advertisement,  362.  Affidavit  to  make 
garnishee  party,  362.  Notice  to  garnishee,  363.  She- 
riffs return,  363.  Declarations  in,  363.  See,  Deposi- 
tions and  Select  Writs. 

BAIL. 

Affidavit  to  hold  to  bail,  11.  Judges  order  for  special 
bail  in  vacation,  12.  Order  of  Couit  for  special  bail.  13. 
Appearance  bail,  14.  Bail  bond  to  Sherif!',  15.  Special 
bail  when  to  be  entered,  15,  n.  (a).  Form  of  recogni- 
zance, 16.     Bail  piece,  16. 

BILLS  IN  CHANCERY. 

See,  Chancery. 
BILLS  OF  EXCEPTION. 

Form  of,  how  and  by  whom  allowed,  364,  365. 

BONDS. 

Bail  bond  to  Sheriff,  1 5.  Replevin  bond,  127.  Bond  on 
writ  of  error,  212.  The  like,  on  Certiorari,  245.  In- 
junction bond,  311.  Bond  to  Sheriff  on  redelivery  of 
property  in  attachment,  361.  Appeal  bond,  368.  For 
removal  of  cause  to  Circuit  Court,  413. 

CAPIAS  AD  RESPONDENDUM. 

Nature  of,  and  how  served,  7.  When  it  may  issue,  10. 
Praecipe  for  in  assumpsit,  11.  In  debt,  80.  In  covenant, 
108.  In  detinue,  117,  Incase,  137.  In  trover,  147. 
In  trespass,  154,  n.  (a).  How  endorsed,  13.  Alias  and 
Pluries,  13.     Testatum,  14. 

CASE. 

Action  of,  5.      How  commenced,  136.      Praecipe  for 
-^^^_  summons  in,  136.     For  capias,  137.     Declarations  in. 

^tiS?r^  /-V''^-        See,  Declarations. 
^#  "^CERTIORARI. 

f)efined^243.     Form  pf  allowance  by  Ju3ge  ia^acation, 
•■^j  244.     B^  Court  in  term  time,  245.     Foymof  bond,  245. 

•■  ^  .  Form  of  writ,  and  how  served,  246.    Form  of  notice, 


INDEX.  485 

and  how  served,  247.  Judgments  in,  248.  For  the  al- 
lowance and  forms  of  certiorari  on  suggestion  of  diminu- 
tion in  error,  See,  Erroy;  Special  Entries,  426. 

CHANCERY. 

Courts  of,  how  established,  251.  Of  the  several  kinds  of 
bills,  253.  Form  of  original  bills,  254.  •  For  a  specific 
performance,  vendee  against  vendor,  256.  The  like, 
when  a  title  bond  was  given  and  the  lands  resold  to  a 
subsequent  purchaser  with  notice,  258.  Atfidavit  ibr 
injunction,  258,  n.  (a).  13111  of  foreclosure,  260.  Bill  of 
interpleader,  262.  Affidavit  against  collusion,  263.  Of 
want  of  knowledge  of  names  of  defendants,  256,  n.  (c). 
Form  of  writ  of  subpoena,  265.  Notice  bv  publication, 
267,  270.  Affidavit  of  publication,  268,  270.  Order  of 
Court  for  publication,  269.  Appearance  and  defence, 
273.  Demurrer,  274.  Conclusion  of  answer  insisting 
for  benefits  of  demurrer,  276.  Affidavit  of  merits  for 
leave  to  answer,  277.  Pleas,  278.  Affidavit  to  truth  of 
plea,  279.  Answers,  280.  Words  of  course  preceding 
answer,  282.  The  like,  by  guardian  ad  litem,  283.  Af- 
fidavit to  truth  of  answer,  283.  Exceptions  to  answer, 
284.  Replication,  286.  Examination  of  witnesses  and 
proceedings  preparatory  to  a  hearing,  287.  Bills  to  per- 
petuate testimony,  288.  Bills  of  discovery,  289.  Sup- 
plemental bills,  291.  Form  of,  291.  Bills  of  revivor, 
293.  Revivor  on  motion,  295.  Form  of  citation  to  re- 
vive, 296.  Cross  bill,  297.  Bills  of  review,  299.  Upon 
errors  in  law,  301.  Upon  discovery  of  new  matter,  302. 
Entry  of  leave  to  file  bill  of  review,  303.  Defence  to 
bill  of  review,  304.  Bills  to  carry  decrees  into  execution, 
306.  Bills  to  suspend  the  operation  of  decrees,  306.  Pe- 
tition for  rehearing,  306.  Complete  record,  334.  See, 
Injunction,  Master  in  CJianccr^j,  Final  Decrees,  IntcrlO' 
cutory  Decrees  and  Orders. 

CIRCUIT  COURT. 

Removal  of  causes  from  the  State  Courts  to  the  Circuit 
Court,  410.  Form  of  Petition,  411.  Order  of  removal. 
412.     Form  of  bond,  413.     Record,  413. 

CLERK. 

Certificate  to  record,  76.  The  like,  on  rennoval  oi  causes 
from  State  Court  to  Circuit  Court  Order  for  appoint- 
ment of,  426.  ^'-     .  , 

COMPLETE  RECORD. 

At  law,  72.     In  Chancery,  334.  ' 


486     •  INDEX. 

CONTINUANCE. 

Defined,  397.     Affidavit  for,  397.     Entry  of,  398. 
COSTS. 

Security  for,  when  and  how  given,  8,  9.  Order  for,  on 
leave  to  amend  declaration,  plea,  &c.  02,  n.  (ci).  When 
and  how  to  be  inserted  in  execution,  353. 

COURTS  AND  THEIR  JURISDICTION. 

Justice  of  the  Peace,  1.  Common  Pleas,  2,  7.  Supreme 
Court,  3,  7.     Court  in  Bank,  4. 

COVENANT. 

Action  of,  5.  How  commenced,  107.  Preecipe  for  sum- 
mons in,  107.  For  capias,  108.  Declarations  in.  See, 
DecIaratio7is. 

DAMAGES. 

Assessment  of  by  jury  on  demurrer  over-ruled,  nul  tiel 
record,  ^"C.  56,     By  Court  5G.     n.  (a)  60. 
DEBT. 

Action  of,  5.  How  commenced,  79.  Praecipe  for  sum- 
mons in,  79.  For  capias,  80.  Declarations  in.  See, 
Declarations. 

DECLARATIONS. 

In  Assumpsit,  Payee  vs.  maker  of  promissory  note,  21.  In- 
dorsee vs.  maker,  22.  Partners  vs.  maker,  22.  Payee 
vs.  partners,  23,  Indorsee  vs.  indorser,  23.  Indorsee 
vs.  executor  of  maker,  24.  Averments  of  want  of  effects 
and  that  the  maker  could  not  be  found,  24.  Drawer  of 
bill  of  exchange,  being  also  payee  vs.  acceptor,  25. 
Drawer,  not  being  payee  vs.  acceptor,  25.  Indorsee  vs. 
acceptor,  26.  Payee  vs.  accepter,  20.  Payee  on  non- 
acceptance  vs.  drawer,  26.  Indorsee  on  non-acceptance 
vs.  indorser,  27.  Indorsee  on  non-acceptance  vs.  payee, 
28.  On  bills  payable  after  date,  28.  On  bills  payable 
alter  sight,  28.  On  foreign  bills,  29. 
Common  Coiints,  29. 

Agreements  and  special  j)Tomises.     For  refusing  to  deliver 
^  goods,  30.     The  like,  upon  request,  30.     On  award  by 

parol   submission,   31.     On  note  payable  in  trade,   31, 
J'V      *  ,     The  like,  the  price  being  agreed  upon,  32.     On  a  promise 

'■"^^  .  "to  take  back  a  horse,  if  unsound,  and  refund  the  price, 

'  S'S.     On  the?  sale  of  a  horse  with  warranty,  33.     For  not 

delivering  goods,  &lc.  in  exchange,  34.     , 
QuantuTTt-^ieruit  counts.     For  rent,  34.     For  use  and  oc- 
cupation, 35.     For  horse  feed,  stabling,  &c.  35.     For  the 


INDEX.  487 

hire  of  horses,  &c.  35.    By  physicians  foi'  medicines,  &c. 
36.     By  attorney  for  his  fees,  &c.  36. 

In  debt.  On  promissory  note  under  seal,  82.  On  bond  for 
tlie  payment  of  money,  84.  On  bond  without  date,  84. 
On  bond  by  surviving  obHgee,  84.  By  baron  and  feme, 
on  bond  given  to  feme  dum  sola,  85.  Administrator  of 
obhgee  against  obhgor,  85.  Obligee  vs.  administrator  of 
obligor,  85.  On  bonds  stating  the  conditions  under  the 
statute,  86.  On  a  bond  to  perform  covenants  in  another 
indenture,  87.  On  judgement,  87.  Assignment  of 
breaches  under  the  statute,  103. 

In  COVENANT.  Lessor  vs.  lessee,  for  rent,  110.  Grantee  vs. 
grantor,  on  covenants  of  seisin,  power  to  convey,  war- 
ranty, &c.  111.  Assignee  of  grantee  vs.  granter,  on 
covenants  of  seisin  and  warranty,  112. 

In  DETINUE,   119. 

In  replevin,  129. 
In  trover,  148. 

In  case.  Against  carrier  for  not  delivering  goods,  &c.  139. 
For  immoderately  riding  a  horse,  140.  For  falsely  war- 
ran  tying  a  horse  to  be  sound,  140.  For  charging  the 
plaintiff  with  perjury,  141. 

In  trespass.  Assault  and  battery,  155.  The  like,  with  false 
imprisonment,  155.  For  debauching  a  daughter  or  ser- 
vant, 155.  Trespass  quare  clausum  fregit,  156.  For 
cutting  and  carrying  away  trees,  157.  For  taking  and 
carrying  away  goods,  157.  For  mesne  profits  after  a 
recovery  in  ejectment,  158.  New  assignment  to  plea  of 
liherum  tenementum,  104. 

In  ejectment,  179. 

Leave  to  amend  declaration,  62,  70. 
DECREES. 

Forms  of,  320.  Bill  dismissed  with  costs  on  final  hear- 
ing, 320.  Injunction  dissolved  and  bill  dismissed  with 
costs  on  final  hearing,  321.  Injunction  dissolved,  bill  dis- 
missed and  decree  for  defendant  for  the  amount  of  judg- 
ment at  law  with  costs  and  penalty,  321.  Decree  upon  . 
answer,  &c.  against  one  defendant,  and  pro  confesso 
against  another,  322.  For  specific  performance,  322. 
^^,  The  like,  y^ro  confesso,  323.     For  perpetual  injunction 

and  conveyance  of  real  estate,  32^,     See,  Interlocutory 
Decrees  and  Orders.  /r,^\ 

DEDIMUS  rOTESTATEM. '  '^    ' 

See,  Depositions. 


,.^  488  INDEX. 

DEED. 

Sheriff's  deed  to  party  electing  to  take  the  estate  in  par- 
tition, 378.  The  Uke,  to  a  purchaser  in  partition,  381. 
Administrator's  deed,  390. 

DEMURRERS. 

See,  Pleas  and  Pleadings. 
DEPOSITIONS. 

When  and  how  taken,  344.  Form  of  notice,  344.  Form 
of  subpoena  for  witnesses,  345.  Form  of  attachment,  346. 
Words  of  course  preceding  depositions  taken  upon  notice, 
330.  Cerlificateof  officer  taking  depositions,  347.  Clerk's 
certificate,  348.  Dedimus  potestatem,  348.  Order  for, 
348.  Forms  of;  349,  350.  Directions  to  Commissioners, 
350.     Depositions  suppressed  and  cause  continued,  332. 

DETINUE. 

Action  of,  5.  How  commenced,  11 G.  Praecipe  for  sum- 
mons in  116.  For  capias,  116.  Declarations  in.  See, 
Declarations. 

DOWER. 

Form  of  petition,  381.  Decree  for  assignment  of,  383. 
Writ  of,  383.  Sheriff's  return,  384.  Sheriff's  assign- 
ment confirmed  and  writ  of  seisin  ordered,  385.  Writ 
of  seisin,  385. 

EJECTMENT. 

Action  of,  5.  Nature  of  remedy  and  when  it  lies,  168. 
Title  of  term,  169.  Venue,  169.  Demise  by  whom,  169. 
Time  of  demise,  171.  Description  of  the  premises,  172. 
Entry,  173.  Ouster,  173.  Notice  to  appear,  174.  A- 
mendments,  174.  Declarations  in,  179.  Notice  to 
tenant,  180.  Service  of  the  declaration,  how  and  upon 
whom  made,  181.  By  whom  made,  182.  When  it  must 
be  made,  183.  Affidavit  of  service,  184.  Judgment  by 
default  against  casual  ejector,  186.  Who  may  defend, 
188.  Consent  rule,  190.  Consolidation,  193.  Pleas  in 
bar,  194.  Order  for  survey,  195.  Verdict  and  judg- 
ment for  plaintiff,  198.  The  like,  for  defendant,  198. 
See,  Occupying  Claimants. 

ERROR. 

Nature  of  remedy  and  when  it  lies,  206.     Of  the  time 

.^  .     and  manner  of  bringing  a  writ  of  error,  207.     Form  of 

X-  :^,        writ  of  error,  208.     Assignment  of  errors,  209.     Cjta- 

*        '  ti on,  notice  and  supersedeas,  211.     Form  of  citation  and 

v,:^s^  notice,  211.     Form  of  bond  on  error,  212.    Supersedeas, 


I 


INDEX.  489 

citation  and  notice  in  one  writ,  213.  Demurrer  and  plea, 
214.  Common  joinder,  215.  Sui^gestion  of  diminution 
and  certiorari,  215.  Order  for  allowance  of  certiorari^ 
216.  Form  of  certiorai4,  217.  The  like,  on  suggestion 
of  specific  diminution,  219.  Amendment,  221.  Judg- 
ment of  affirmance,  222.  Of  reversal,.  223.  The  like, 
specifying  the  causes  of  reversal,  223.  Judgment  of  re- 
versal and  final  judgment  for  plaintiff  in  Supreme  Court, 
224.  Judgment  of  reversal  and  cause  remanded  to  Com- 
mon Pleas  with  instructions  to  over-rule  demurrer,  224. 
Judgment  of  reversal  and  procedendo,  225.  Judgment 
of  reversal  in  part  and  affirmance  in  part,  226.  Man- 
dates, 226,  227.  Writ  of  restitution,  228.  Scire  fa- 
cias quare  executionem  non,  229. 

EXECUTIONS. 

Fi.  Fa.  et  Lev.  Fa.  on  judgment  or  decree  for  money  in 
Common  Pleas,  353.  The  like,  on  mandate  from  Su- 
preme Court,  354.  Ca.  Sa.  on  judgment  or  decree  for 
money  in  Common  Pleas,  354.  The  like,  on  mandate 
from  Supreme  Court,  355.  Venditioni  exponas,  355. 
Alias  and  pluries  executions,  350.  Habere  facias  posses- 
sionem, 356.     Execution  in  Detinue,  357. 

FINAL  DECREES. 

See,  Decrees. 

GUARDIANS. 

Sale  of  real  estate  by,  392.     rorm  ot  peiuion, 

HABEAS  CORPUS. 

Form  of  application,  339.  Allowance  ol  by  single  Judge, 
339.  The  like,  in  term  time,  340.  Form  of  "writ,  340. 
Service  and  return,  341.  Orders  for  discharge,  recom- 
mitment, &c.  342. 

INJUNCTIONS. 

Allowance  of,  308.  B}'  Court,  310.  By  Judge  in  va- 
cation, 310.  Injunction  bond,  311.  ^li^n.  Chancery ^  In- 
terlocutory orders  and  decrees. 

INTERLOCUTORY  DECREES  AND  ORDERS. 

For  leave  to  amend  bill,  321.  For  a])pointment  of  guar- 
dian ad  Litem,  325.  Demurrer  or  jilca  over-ruled,  leave 
to  answer,  &ci  325.  Injunclioi]  allowed  by  Court,  325. 
By  Judge  in  vacation,  325.  Injunction  dissolved  and 
cause  continued,  320.  Order  nunc  pro  tunc,  320.  Or- 
der to  make  an  election,  320.  To  add  a  defendant  ta  a 
bill,  320.  For  the  discharge  of  a  suitor  arrested  on  leav- 
ing Court,  327.     For  the  appointment  of  a  receiver  with 

N  .N  \ 


480  INDEX. 

liberty  to  let  the  estate,  &c.  327.  Reference  to  Master 
on  exceptions  to  answer  for  insufficiency,  327.  The  like, 
for  scandal  and  impertinence,  328.  Reference  to  Mas- 
ter to  state  an  account,  328.  Confirmation  of  Master's 
report,  328.  Order  for  Master  to  sell  real  estate,  329. 
Sale  by  Master  and  deed  ordered,  329.  Leave  to  file 
bill  of  review,  329.  Decree  reversed  on  bill  of  review  in 
Common  Pleas,  330.  The  hke,  in  Supreme  Court,  330. 
The  like,  and  cause  continued,  330.  Decree  of  Common 
Pleas  affirmed  in  Supreme  Court,  on  bill  of  review,  331. 
Decree  of  Common  Pleas  reversed  and  final  decree  in 
Supreme  Court,  331,  Depositions  suppressed  and  cause 
continued,  332.  Order  for  publication  of  notice  to  non- 
residents, 332.  Order  for  a  new  trial  at  law,  332.  Is- 
sue out  of  Chancery,  devisavit  vel  non,  332. 

JUDGMENTS. 

In  assumpsit.  For  plainlifl'  on  demurrer  to  plea  in  abate- 
ment, 61.  For  plaintiff"  on  demurrer  to  a  replication  to 
plea  in  abatement,  61.  For  plaintiff  on  demurrer  to  de- 
claration or  replication,  and  damages  assessed  by  jury, 
61.  For  plaintiff  on  demurrer  to  plea  or  rejoinder,  62. 
For  plaintiff  by  default  and  damages  assessed  by  Court, 
63.  The  like,  damages  assessed  by  jury,  63.  For  plain- 
tiff on  plea  of  non-assumpsit,  and  verdict  for  plaintiff,  63. 
The  like,  against  an  executor  or  administrator,  64.  For 
plaintiff  on  submission  to  Court  to  try  issue  and  assess 
damages,  64.  For  plaintiff,  by  confession,  relicta  veri- 
jicatione,  release  of  errors,  &c.  64.  For  plaintiff  on  re- 
plication of  nul  tiel  record,  65.  On  plea  of  nul  del  re- 
cord,  65.  By  confession  on  warrant  of  attorney,  66.  On 
demurrer  to  evidence,  66.  For  defendant  on  non-suit, 
67.  The  like,  before  jury  sworn,  67.  Non-suit  for  want 
of  declaration,  67.  For  want  of  replication,  68.  On 
discontinuance,  68.  Nolle  prosequi,  68.  The  like,  as  to 
one  or  more  Counts,  68.  For  defendant  on  demurrer  to 
plea,  69.  To  declaration,  69.  On  plea  of  nul  tiel  re- 
.  .  cord,  70.  On  non-assumpsit,  70.  On  demurrer  to  evi- 
.   •  dence,  70.     On  notice  of  set-off,  judgment  for  balance,  71. 

Ii*  DEBT.  For  plaintiff  on  demurrer  to  declaration  on  simple 
contracts,  single  bonds,  &c.  100.  The  like,  by  default, 
debt  found  and  damages  assessed  by  Court,  101.  The 
like,  debt  found  and  damages  assessed  by  jury,  101.  On 
nil  debet,  101.  On  submission  to  Court  to  tr^  issue  gnd 
assess  damages,  102.     By  confession  relicta  veri^atfone, 

102.  On  Hon  e'st  factum,  102.  On  nul  tiel  record,  103. 
Assignment  of  breaches  and  judgments  under  the  statute, 

103.  4,  ^.  ..     *r 


INDEX.  ^  491 

In  detinue.     For  plaintiff,  on  general  verdict,  124.     On  ver» 

diet  in  part,  124.     For  defendant,  124. 
In  replevin.     For  plaintiff'  on  non  detinet,   135.     The  like, 

on  default,  135.     For  defendant,  135. 
In  case.     For  plaintiff  on  plea  of  not  guilty,  144.     The  like, 

for  defendant,  144. 
In  trover.     For  plaintiff  on  plea  of  not  guilty,  152.     The 

like,  for  defendant,  152. 

In  TRESPASS.     For  plaintiff  on  plea  of  not  guilty,  167.     The 

like,  for  defendant,  167. 
In  EJECTMENT.    For  plaintiff,  196.    For  defendant,  198.    For 

plaintiff  under  occupying  claimant  law,  204. 
In  error,  222. 
In  scire  facias,  240. 
JUSTICES  OF  THE  PEACE. 

Jurisdiction  of,  1.     Appeals  from,  370.     Seej  Certio- 

rai^i,  Special  Entries, 

MANDATE. 

Order  for  to  carry  judgment  of  Supreme  Court  into  exe- 
cution, 62,  n.  (b).     The  like,  on  writ  of  error,  226,  227. 

MASTERS  IN  CHANCERY. 

How  appointed  and  their  duties,  313.  Words  of  course 
preceding  Master's  report,  3 15.  Words  of  course  pre- 
ceding exceptions  to  Master's  report,  315.  Report  of 
sale  by,  316.  Affidavit  of  publication  of  Master's  sale, 
317.     See  Interlocutory  decrees  and  orders. 

MESNE  PROCESS. 

Nature  and  several  kinds  of,  6. 
MOTIONS. 

Defined,  393,  Form  of,  393.  Journal  entry  of,  394. 
To  produce  books  and  writings,  394.  Form  of  notice, 
395.     Order  to  produce  books,  &c.  395. 

NE  EXEAT  REPUBLICA. 

Nature  of  remedy  and  when  it  lies,  318.  Form  of  writ» 
219. 

NOTICE. 

See,  Chancery,  Depositions^  Partition,  Motions, 
OATHS. 

To  foreman  of  grand  jury,  399.     To  other  grand  jurors, 
399»  '  Of  executors,  400.     Of  administrators,  400.     Of 
petit  jurors,  400.    Of  witnesses  before  jury,  401.     The     ^. 
like,  before  Court,  401.  '  '--*''• 


492  INDEX. 

OCCUPYING  CLAIMANTS. 

Order  of  Court  for  valuation  of  improvement,  199.  Or- 
der to  Sheriff,  201.  Sheriff's  return  and  report  of  jury, 
202,  Judgment  for  plaintiff  for  balance  found  by  jury, 
204. 

OFF-SET. 

See,  Set-off. 

ORDERS. 

See,  Interlocutor]/  decrees  and  orders,  special  entires. 

PARTITION. 

Form  of  petition,  371.  Notice,  373.  Affidavit  of  pub- 
lication, 373.  Affidavit  of  personal  service,  373.  De- 
fence, 374.  Order  for  partition,  374.  Writ  of  partition, 
375.  Report  of  Commissioners  on  partition  made,  376. 
Report  of  valuation  by  Commissioners,  376.  Sheriff's 
return,  377.  Report  of  partition  confirmed,  377.  Order 
,  confirming  an  election  by  one  of  the  parties  and  direct- 

ing the  Sheriff'  to  make  deed,  378.  Order  to  sell  the 
estate,  380.  Confirmation  of  Sheriff's  sale,  deed  ordered 
and  money  distributed,  380.  Sheriff's  deed  to  purchaser, 
381. 

PLEAS  AND  PLEADINGS. 

For  declarations.  See,  Declarations. 
Pleas  in  abatement.    Want  of  parties,  plaintiffs,  38.    Want 
of  parties,  defendants,  39.     No  such  person  in  esse,  38. 
Another  action  pending,  40. 
Pleas  in  bar.     Non-assumpsit,  41.     Statute  of  limitations, 
43.     Tender,  44.     Satisfaction,  45.     Infancy,  46.     Puis 
darrein  continuance,  47.     Non  est  factum.  89.     Nil  de- 
bet, 90.    Nf>n  est  factum  after  craving  oyer,  91.    Non  est 
factum  and  nil  debet  to  debt  on  bond  and  simple  contract, 
92.     Onerari  non.,  92.     Deed  obtained  by  fraud,  93.    By 
duress  of  impi'isonment,  93.     Solvit  ad  diem,  94.     Gene- 
ral  performance,  94,   95.      NiJ   tiel   record,   95.     Non 
damnificatus,  95.    Non  infregit  conventionem,  114.    Non 
detinet,  in  detinue,   121.      The  like,  in  replevin,   130. 
Property  in  defendant,  131.     Not  guilty,  in  trover,  150. 
The  like,  incase,  142.     The  like,  in  trespass,  160.     Son 
assault,  161.     Property  of  defendant,  &c.  162.     Libe- 
>  .  rum  tenementum,  163.     New^  assignment  to  plea  of  libe- 
•     rum  tenementum,   164.     In  ejectment,   194.     In  scire 
r^:  facias,  238. 


w^ 


INDEX.  493 

REPLICATIONS. 

To  pleas  in  abatement,  39.  Nul  tiel  record,  40.  That 
plaintiff' was  out  of  the  State,  44.  No  tender  made,  45, 
Subsequent  request  and  refusal,  45.  Did  not  accept,  to 
plea  of  satisfaction,  46.  Necessaries,  to  plea  of  infancy, 
46.  Defendant  at  large,  to  plea  of  duress,  94.  Of  his 
own  wrong,  to  son  assault,  162. 

Rejoinder.     To  plea  in  bar,  44. 

Demuukers,  To  plea  in  abatement,  48.  Joinder,  48.  To 
declarations,  48.  Special  demurrei',  48,  n.  (a).  Joinder, 
49.  To  pleas  in  bar,  49.  Joinder,  49.  Demurrer  to 
evidence,  49.  Joinder,  50.  Leave  to  withdraw,  and 
plead,  reply,  &c.  62,  n.  (a).     Form  of  entry.  Ibid.  G9. 

PRAECIPES. 

For  summons  in  assumpsit,  8.  In  debt,  79.  In  cove- 
nant, 107.  In  detinue,  116.  Incase,  136.  In  trover, 
145.  In  replevin,  125.  In  trespass,  153.  For  capias 
in  assumpsit,  11.  In  debt,  80.  In  covenant,  108.  In 
detinue,  117.  In  case,  137.  In  trover.  146.  In  Ires- 
pass,  154,  71.  (a). 

PROCESS. 

Mesne  process,  nature  and  several  kinds  of,  6.  See, 
Summons,   Capias,   Writs. 

RECORD. 

Complete  record  at  law,  72.  In  Chancery,  334.  Au- 
thentication of,  76.  Form  of  in  removing  causes  from 
State  Courts  to  Circuit  Court,  413. 

REJOINDER. 

See,  Pleas  and  pleadings. 
REPLEVIN. 

Action  of,  5,  How  commenced,  125.  Precipe  and  af- 
iidavitin  125.  Writ  of,  126.  Bond,  127.  Declaration 
in,  129. 

REPLICATIONS. 

See,  Pleas  and  pleadings. 

SALE  OF  REAL  ESTATE  BY  ADMINISTRATORS. 
#  See,  Administrators. 

SALE  OF  REAL  ESTATE  BY  GUARDIAN. 

See,  Guardians.         '    ■ 
3CIRE  FACIAS. 

Nature  of  remedy  and  when  it  lies,  25L     To  revi\-iR». 
judgment  for  plaintiff  after  five  years,  231.     The  like,  in*^-- 


494  INDEX. 

behalf  of  executor  or  administrator  of  plaintiff,  232.  To 
revive  judgment  against  executor  or  administrator  of  de- 
fendant, 232.  To  make  defendants  not  served  with  ori- 
ginal process,  parties  to  judgment,  233.  Suggesting  fur- 
ther breaches  after  judgment  on  penal  bond,  -^34.  To 
make  sureties  of  Sheriff  parties  to  amercement,  235.  To 
subject  real  estate  to  the  payment  of  Justices  judgment, 
235.  Against  special  bail,  236,  Pleadings  in,  238.  Nul 
tiel  record,  239.  Payment,  239.  Death  of  principal 
before  return  of  Ca.  Sa.  239.     Judgments  in,  240. 

SECURITY. 

For  costs  how  and  when  to  be  given,  8,  9.  Defendant 
may  rule  plaintiff  to  give  security  for,  9.     See,  Bail. 

SELECT  WRITS. 

Attachment  for  contempt  of  Court,  402.  Habeas  Cor- 
pus, to  give  evidence,  402.  Special  mandate  from  Su- 
preme Court  to  Court  of  Common  Pleas,  to  carry  judg- 
ment or  decree  into  execution,  403.  Procedendo,  404. 
Prohibition,  404.  Restitution  in  ejectment,  405.  Sub- 
pceha  for  witnesses,  406.  Venire  facias  for  grand  and 
petit  jurors,  407.  Citation  to  administrators  or  guardians, 
407.  Summons  upon  plea  in  abatement,  408.  Certio- 
rari from  Supreme  Court  to  Common  Pleas  or  other  in- 
ferior jurisdictions,  408. 

SET-OFF. 

Form  of  notice,  42.  Verdict  for  defendant  for  balance 
on  notice  of  set-off,  59.     Judgment  for  same,  71. 

SPECIAL  ENTRIES. 

Appointment  of  guardian  chosen  by  infant,  415.     The 
like,  where  infant  cannot  make  choice,  415.     Tavern  li- 
cense granted,  415.     Letters  of  administration  granted 
and  appraisers  appointed,  415.     Probate  of  will,  416. 
Letters  of  administration  granted  with  the  will  annexed, 
416.    Rule  for  security  for  costs,  417.     Security  for  costs 
entered  in  term  time,  417.     Judgment  for  costs  against 
security  on  motion,  417.     Verdict  set  aside  and  new  trial 
granted,  417,    Juror  withdrawn  and  cause  contiued,  418. 
Reference  to  arbitration,  418.      Award  returned  and 
judgment  thereon,  418.     Defendant  surrendered  by  spe- 
cial bail,  419.    •  Jury  sworn  and  adjourned,  419.    Altach- 
■  v^lfignt  awarded '■against  a  witn^gs,  419.     Verdict  and 
V  -  '^'-judgment  set  asid6  and  new  tri^ftanted,  420.  "  Motion 
:  to  set  aside  verdict  and  judgixflilit  jttid  for  a  iiew  .trial 
■■^■i'-     \  over-ruled^  ^20. .  Entry  of  satisf?k<5tion,"  420.  "  '  '  efee 
V  ^  .rf"!  >     to  marry,  Jlo.     Sale  on  execution  confirm.  i'eed 

ordered,  421.    Motion  to  ^ra^iPiJ  appeal  over-ruled,  421. 


INDEX.  495 

Motion  in  arrest  of  judgment  over-ruled  and  final  judg- 
ment upon  verdict,  421.  Judgment  arrested  and  leave 
to  amend  declaration,  422.  Writ  of  error  quashed,  422. 
Motion  granted  to  amend  judgment,  422.  l^eave  to  with- 
draw demurrer  and  plead  issuably,  422.  Judgment  for 
plaintiff  upc:i  agreed  case,  423.  Rule  for  attachment  for 
contempt  of  C'ourt,  423.  Order  for  change  of  venue,  424. 
Admission  of  attorney  and  solicitor,  424.  The  like,  un- 
der the  reciprocity  act,  424.  Judgment  for  defendant 
upon  special  verdict,  425.  Order  of  Common  Pleas  re- 
versed on  certiorari  in  f^^upreme  Court,  4"25.  Order  of 
Common  Pleas  affirmed  on  certiorari  in  Supreme  Court, 

425.  Journal  entry  at  the  commencement  of  a  term, 

426.  Appointment  of  Clerk,  426.  Allowance  of  fur- 
ther time  to  an  administrator,  426.  Final  settlement  of 
administrators  accounts,  42G.  Commitment  for  con- 
tempt of  Court,  427.  Order  for  administrajpr  to  com- 
plete real  contract  of  intestate,  427.  Appraisfement  on 
execution  set  aside  and  new  one  ordered,  427.  Rule  to 
plead  extended,  427.  Order  for  the  redemption  of  land 
sold  for  taxes,  428.  Appeal  quashed,  428.  Change  of 
recognizance  on  appeal  in  Common-  Pleas,  429.  The 
like,  when  the  recognizance  is  insufficient  in  form  or 
amount,  429.  Transcript  filed  by  appellee  and  judg- 
ment in  his  favor  in  Common  Pleas,  429,  Transcript 
filed  by  appellee,  appeal  dismissed  and  cause  remanded, 
430.  Judgment  of  non-suit  against  appellant,  and  final 
judgment  in  favor  of  appellee,  430. 

SUBPOENA  FOR  WITNESSES,  406. 

SUMMONS. 

Nature  of  writ  and  how  served,  7.  Writ  of  in  assump- 
sit, 8.  In  debt,  79.  In  covenant,  107.  In  detinue,  116. 
In  case,  136.  In  trover,  145.  In  replevin,  126.  In 
trespass,  154,  n.  (a).  Cause  of  action  must  be  endorsed 
upon,  8.     Alias  and  pluries  summons,  9.     Testatum,  10. 

SURVEY.  . 

Order  fbr  in  ejectment,  195. 

suretV.  '^ 

She,  Securityr^^^    , 
TRFSPASS.  '  iL^f* 

'  if. ;").  How  commenced,  \ 53.  Sf  rajcipe  for  sum- 
mons m,  153.  For  capias,  154,  7i.  (a).  Declarations  in. 
Sek,  Declarafion^'^1^^  ^ssx^maQwi  to  plea  of  libcrum 
tenemcntum,  164. 


496  INDEX. 

TRIALS  AND  VERDICTS. 

Nature  of,  51.     See,  Verdicts. 
TROVER. 

Action  of,  5.  How  commenced,  145.  Praecipe  for  sum- 
mons in,  145.  For  capias,  140.  Declarations  in.  See, 
Decla?^ations. 

VERDICTS. 

How  rendered,  52.     Special  verdicts,  52, 

In  ASSU3IPSIT.  For  7?Z«m//'^  on  non-assumpsit,  52.  Against 
administrator,  53.  When  all  of  several  issues  are  found 
for  plaintiff,  53.  On  plea  of  tender  as  to  part,  and  non- 
assumpsit  as  to  residue,  54.  When  one  issue  is  found 
for  plaintiff  and  another  for  defendant,  54.  On  default, 
54,  55.  Against  two  defendants  when  one  pleads  non- 
assumpsit,  and  the  other  is  defaulted,  55.  Assessment 
of  damages  on  demurrer  over-ruled,  nul  tiel  record,  &c. 
50,  For  defendant  on  non-suit,  50.  On  non-assumpsit, 
57,  For  one  defendant  on  non-assumpsit,  when  another 
has  let  judgment  go  by  default,  57.  On  non-assumpsit  by 
intestate,  57.  On  several  issues,  58.  When  one  issue  is 
found  for  defendant  and  another  for  plaintiff,  58.  On 
notice  of  set-off,  balance  found  for  defendant,  59. 

In  debt.  For  plaintiff  on  nil  debet,  97.  On  non  est  factum, 
98.  On  solvit  ad  diem,  98.  For  defendant  on  nil  debet,  98. 
On  non  est  factum,  98,     The  like,  on  notice  of  set-off^  98. 

In  covenant,  115. 

In  detinue,  122. 

In  replevin.  For^/aiw^j^on  non  detinet,  132..  On  default 
damages  assessed  by  jury,  132.  Y or  defendant,  on  dis- 
continuance, right  of  property  and  right  of  possession 
found  in  defendant,  133,  The  like,  on  non-suit,  133.  The 
like,  on  demurrer  to  plea,  134,  Issues  found  for,  and 
right  of  property  and  right  of  possession  or  either  of 
them  found  in  defendant,  134, 

In  trover,  151. 
In  case,  143. 
In  trespass,  1 GQ. 
-In  ejectment.  196,  198,- 

WARRANT  OF  ATTORNEY  TOGOI^^FESS  JUDGMENT, 

,     'i-'-    :         .66,71.  (a).  --   %     -^'       ;      ' 

■'^"  "  '  Writ  of  error,  20S,  Of  certiorari  on  suggestion  of  di- 
minution, 217,  219,  Writ  of  restitution;  228,  Scire 
facias,  231.  Certiorari  to  Justices  of  the  Peace,  246. 
See,  Summons,   Capias,  Select  W^-its. 


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